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DEAN LODMELL v. JOAN LAFRANCE
(AC 36050)
DiPentima, C. J., and Lavine and Beach, Js.
Argued September 26—officially released December 23, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Taggart D. Adams, judge
trial referee.)
Robert T. Rimmer, for the appellant (plaintiff).
Mathew P. Jasinski, with whom, on the brief, was
Ingrid L. Moll, for the appellee (defendant).
Opinion
LAVINE, J. The plaintiff, Dean Lodmell, appeals from
the judgments of the trial court granting the motions
filed by the defendant, Joan LaFrance, to dismiss his
applications to vacate arbitration awards. On appeal,
the plaintiff claims that the court, in dismissing his
applications, improperly applied the prior pending
action doctrine. We affirm the judgments of the trial
court.
The following facts and procedural history are rele-
vant to the resolution of the plaintiff’s appeal. In con-
templation of marriage, the parties entered into a
prenuptial agreement (agreement) on November 22,
2000. They were married on November 25, 2000. Neither
party contests the enforceability of the agreement. On
March 15, 2010, the defendant commenced an action for
dissolution of marriage. Section 16.20 of the agreement
provides: ‘‘In the event of any dispute hereunder, such
dispute shall be resolved by first submitting the matter
to mediation. If mediation fails, then the matter shall
be submitted to binding arbitration in accordance with
the rules of the American Arbitration Association.’’ In
the dissolution action, the court, Malone, J., ordered
the parties to proceed to arbitration on the matter of
‘‘the sale of the joint asset, a residential piece of real
estate, and what procedures are to be followed, and
what proceeds each party is entitled to from a sale.’’1
The plaintiff filed an appeal to this court of Judge
Malone’s order and the defendant filed a motion to
dismiss the appeal for lack of a final judgment. On
November 16, 2011, this court granted the defendant’s
motion to dismiss the appeal for lack of a final judgment.
See General Statutes § 52-263. The parties participated
in a three day arbitration hearing in October, 2012,
before Arbitrator Donna M. Wilkerson.
Wilkerson issued a partial award on November 9,
2012, which was modified on December 17, 2012, and
a final award on December 17, 2012, which are both
the subject of this appeal. After Wilkerson issued the
partial award, the plaintiff filed an application to vacate
the partial award on December 5, 2012, pursuant to
General Statutes §§ 52-418 and 52-420 and Practice
Book § 23-1. Approximately one month later, on Janu-
ary 4, 2013, the defendant filed a motion for an order
confirming the partial award in the dissolution action.
In response to Wilkerson’s December 17, 2012 final
arbitration award, on January 14, 2013, the plaintiff filed
on the civil docket an application to vacate in part
that award. One day later, the defendant filed in the
dissolution action a motion for order confirming in part,
modifying in part, and vacating in part the final arbitra-
tion award. In essence, both parties sought to confirm
or vacate the partial and final arbitration awards. The
defendant sought to have the arbitration awards con-
firmed in part, modified in part, and vacated in part in
the dissolution action, and the plaintiff commenced two
separate actions to vacate the awards.
On January 15 and February 5, 2013, in the dissolution
court, the plaintiff filed two objections to the defen-
dant’s motions to confirm the partial and final arbitra-
tion awards, respectively. Subsequently, on February
27, 2013, the defendant filed motions to dismiss both
of the plaintiff’s applications to vacate the arbitration
awards. The plaintiff objected to the motions to dismiss
five days later.
While the matters of confirming or vacating the arbi-
tration awards were pending in both the dissolution
court and on the civil docket, the plaintiff filed a motion
to stay the proceedings on the arbitration awards in
the dissolution court. On July 3, 2013, the dissolution
court, Schofield, J., granted the stay as to the motions
regarding the arbitration awards because the issue was
‘‘presently under consideration for judicial decision’’ on
the civil docket.2 On August 21, 2013, the court, Adams,
J., issued a memorandum of decision granting the defen-
dant’s motions to dismiss the plaintiff’s applications to
vacate the arbitration awards under the prior pending
action doctrine.3 This appeal followed.
On appeal, the plaintiff claims that the court improp-
erly granted the defendant’s motions to dismiss as a
result of its misapplication of the prior pending action
doctrine. We are not persuaded.
We first set forth the law regarding 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 pen-
dency 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 in the same jurisdiction. . . .
The policy behind the prior pending action doctrine is
to prevent unnecessary litigation that places a burden
on crowded court dockets.’’ (Citation omitted; empha-
sis added; internal quotation marks omitted.) Selimoglu
v. Phimvongsa, 119 Conn. App. 645, 649, 989 A.2d 121,
cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).
The framework for our analysis of this appeal is found
in Bayer v. Showmotion, Inc., 292 Conn. 381, 973 A.2d
1229 (2009). ‘‘[W]e conclude that 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 adjudi-
cate the same underlying rights of the parties, but per-
haps seeking different remedies; or (3) insufficiently
similar to warrant the doctrine’s application. In order
to determine whether the actions are virtually alike, we
must examine the pleadings . . . to ascertain whether
the actions are brought to adjudicate the same underly-
ing rights of the parties. . . . The trial court’s conclu-
sion on the similarities between the cases is subject
to our plenary review. ‘‘ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Id., 397–98.
‘‘Following that initial determination, the court must
proceed to a second step. If the court has concluded
that the cases are exactly alike or insufficiently similar,
the court has no discretion; in the former situation, it
must dismiss the second action, and in the latter, it
must allow both cases to proceed. . . . Where actions
are virtually alike, but not exactly alike . . . the trial
court exercises discretion in determining whether the
circumstances justify dismissal of the second action.’’
(Citation omitted; internal quotation marks omitted.)
Kleinman v. Chapnick, 140 Conn. App. 500, 506, 59
A.2d 373 (2013). Our analysis, therefore, is focused on
whether the court properly determined that the actions
were virtually alike and whether the court abused its
discretion in dismissing the applications to vacate the
arbitration awards. See id.
The plaintiff claims that the prior pending action doc-
trine is not applicable because ‘‘[t]he trial court’s deci-
sion is a departure from earlier application of the prior
pending action doctrine . . . is unknown to the law
and procedure relating to arbitration proceedings . . .
[and the plaintiff’s] applications to vacate . . . were
insufficiently similar to the parties’ divorce case to
invoke the prior pending action doctrine.’’ The plaintiff
further claims that even if the prior pending action
doctrine does apply, good cause exists to allow the
applications to vacate to proceed. The plaintiff’s argu-
ments do not persuade us that the actions are not virtu-
ally alike or that the trial court improperly applied the
prior pending action doctrine.
In this case, Judge Adams examined the claims raised
in the pending dissolution action along with the two
applications to vacate the arbitration awards. He first
noted that the applications to vacate the awards involve
the same two parties ‘‘who have been engaged in a
pending dissolution of marriage action in this district
since 2010.’’ (Emphasis added.) ‘‘[T]he applicability of
the doctrine does not turn on the issue of whether the
two actions seek the same remedy. . . . The key ques-
tion is whether the two actions are brought to adjudi-
cate the same underlying rights.’’ (Citation omitted.)
Kleinman v. Chapnick, supra, 140 Conn. App. 506. The
court determined that the actions before it were ‘‘virtu-
ally the same as the pending matrimonial action’’ and
that that determination was ‘‘made with the focus on
the ineluctable fact that the same underlying claims
are being litigated . . . .’’ Judge Adams noted that the
dissolution court ordered that the issue of the sale of
the marital property be submitted to arbitration. The
court further noted that the two arbitration awards
derived from the dissolution court’s order regarding the
scope of arbitration, and that the jurisdiction of the
family relations docket properly includes actions
related to prenuptial agreements and the division of
property. The court, therefore, properly determined
that the plaintiff’s challenges to the arbitration awards
were the same underlying claims being litigated in the
pending dissolution action and were virtually alike for
purposes of the prior pending action doctrine. The dis-
solution action and two applications to vacate the arbi-
tration awards were brought in the same jurisdiction,
arose from the same factual circumstances, involved
the same parties, and stemmed from the dissolution
court’s order limiting the scope of arbitration.
We conclude that the trial court did not abuse its
discretion in granting the defendant’s motions to dis-
miss pursuant to the prior pending action doctrine. The
policy reasons behind the doctrine are well suited to
this case. The prior pending action doctrine prevents
defendants from being ‘‘harassed by the pendency
against him or her at the same time of two actions
based on the same cause of action, at the instance of
the same plaintiff, who has a complete remedy by one
of them . . . . [The doctrine] is based on the principles
of comity, convenience, and the necessity for orderly
procedure in the trial of contested issues.’’ 1 C.J.S. 51,
Abatement & Revival § 19 (2005). The purpose of the
prior pending action doctrine is properly served in this
case where the court found that the plaintiff’s actions
before it were in essence ‘‘smaller pieces of the overall
issues to be decided in the family relations court . . .
[and were] clearly recognized by [the plaintiff] who
[had] already filed objections [to the defendant’s
motions to confirm the arbitration awards] in the pend-
ing matrimonial case . . . .’’ The court noted that the
objections were ‘‘strikingly similar’’ to the applications
to vacate the arbitration awards and were ‘‘irrefutable
evidence that the issues are the same and that the appli-
cations in these civil actions should be . . . dis-
missed.’’4 (Emphasis added.) We conclude that the trial
court properly determined the plaintiff’s applications
to vacate the arbitration awards were virtually the same
issues as those pending in the dissolution action and
that the court did not abuse its discretion in granting
the defendant’s motions to dismiss.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Article 13 of the agreement states that the parties’ marital residence
at 10 Blanchard Road ‘‘shall be treated as a Joint Asset’’ in the event of
marital dissolution.
2
After the court, Adams, J., granted the defendant’s motions to dismiss,
Judge Schofield granted the defendant’s motion to confirm the partial arbitra-
tion award and motion to confirm in part, modify in part, and vacate in part
the final arbitration award on December 30, 2013.
3
The plaintiff filed a third action for injunctive relief, on March 22, 2013,
after the defendant altered the sale price of the marital residence in conflict
with the price ordered by Wilkerson. Judge Adams granted the defendant’s
motions to dismiss all three actions, including the application to enjoin. In
this appeal, the defendant filed a motion to dismiss the appeal on the
ground of mootness. This court granted the motion to dismiss only as to
the application for injunctive relief because the marital property was sold
on January 17, 2014. We, therefore, consider only the judgments dismissing
the plaintiff’s applications to vacate the partial and final arbitration awards.
4
Judge Adams compared the two applications to vacate before him in
the civil matter with the plaintiff’s objections to the defendant’s motions to
confirm the awards in the dissolution action. Although both applications to
vacate and the objections are quite lengthy, the plaintiff asserts the same
arguments in nearly identical language in the civil actions and the dissolution
action, respectively. For example, in the plaintiff’s application to vacate the
partial arbitration award, six substantive arguments are made: (1) Wilkerson
improperly determined the appraisal value of the marital home; (2) Wilkerson
ignored the agreement and independently determined the right of first refusal
procedure; (3) the debate of choosing the real estate agent should have
been submitted to mediation first; (4) Wilkerson improperly determine the
sale price of the marital home; (5) Wilkerson lacked legal authority to
discharge the subject notice of lis pendens; and (6) Wilkerson improperly
order the plaintiff to pay maintenance expenses for the marital home. The
plaintiff again raises these exact six arguments in the same order and utilizing
similar nomenclature in his objections to the defendant’s motion to confirm
the partial award in the dissolution action. Judge Adams found that the
noticeable similarities between the plaintiff’s claims before his court and
the dissolution court further demonstrated that the applications to vacate
were virtually alike to the matters pending judgment in the dissolution court.