Opinion
No. CVH-7179
January 21, 2005
RULING ON DEFENDANT'S MOTION TO DISMISS
The plaintiff, Chris Webb, d/b/a Get it Go, seeks damages from the defendant, Waterville Properties, LLC, alleging conversion, trespass, and false imprisonment. In connection with the conversion count, the plaintiff seeks injunctive relief requiring the defendant to restore the plaintiff's personal property. In the alternative, the plaintiff seeks damages for the alleged converted property. The defendant filed a motion dismiss the case alleging that this case is precluded because of the prior pending action doctrine. The plaintiff asserts that the prior pending action doctrine does not apply here.
"It has long been the rule that when two separate lawsuits are `virtually alike' the second action is amenable to dismissal by the court. Henry F. Raab Connecticut, Inc. v. J.W. Fisher Co., 183 Conn. 108, 112 (1981)." Solomon v. Aberman, 196 Conn. 359, 382, (1985).
"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." Cahill v. Cahill, 76 Conn. 542, 547 [1904].
Dettenborn v. Hartford-National Bank Trust Co., 121 Conn. 388, 392 (1936).
The plaintiff brought an entry and detainer action pursuant to General Statutes § 47a-43, against the defendant under Docket Number CVH-7172. After a hearing on the merits of the entry and detainer case, the defendant was found guilty of entry and detainer and the Court ordered that the plaintiff be restored possession of the premises located at 89 Barbour Street, Hartford, Connecticut. During the hearing, the plaintiff testified that certain personal property was taken or removed from the demised premises. The parties presented conflicting evidence regarding the personal property. The Court did not order that the missing personal property be returned to the plaintiff in accordance with General Statutes § 47a-45a(a)(4), but left the issue to subsequent proceedings as may be brought by the plaintiff.
"The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force. . . . Communiter Break Co. v. Scinto, 196 Conn. 30 (1985); Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108 (1987).
General Statutes § 47a-43, et seq., provides the party aggrieved who has been dispossessed with an expedited proceeding to regain possession of the premises without resorting to self-help or to violence. As explained in Connecticut Real Property Law: "The tenants" `remedy for a "lock-out," an illegal or self-help eviction by the landlord or others, is the remedy of entry and detainer.' R. Burke, Connecticut Real Property Law (1994) § 47, p. 126." Ashford v. Rogers, Superior Court, Judicial District of Windham at Danielson, Docket No. CV11-9212 (Feb. 2, 2001) ( 29 Conn. L. Rptr. 333); Karantonis v. Town of East Hartford, 71 Conn. App. 859 (2002).
General Statutes § 47a-45a defines and limits the relief available to a complainant aggrieved in an entry and detainer proceeding:
General Statutes § 47a-45a. Finding. Judgment. Costs. Title to land not affected. (a) If it is found (1) that a forcible entry has been made into the land, tenement or dwelling unit, or (2) that the same are detained with force and strong hand, or (3) that damage has been caused to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) that the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, as complained of, the judge shall render judgment that the complainant be restored to, and reseized of, the premises or that the personal property removed or detained be returned to the complainant, and shall award a writ of restitution accordingly . . . (irrelevant portions omitted)
In the entry and detainer proceeding, the plaintiff was restored to and reseized of the premises in accordance with General Statutes § 47a-45a. However, the parties did not agree regarding the nature and extent of the personal property removed or detained by the defendant after the plaintiff was locked out of the premises. The issue was deferred to a subsequent action.
Because of the limited remedies available in the entry and detainer proceeding, the legislature contemplated potential additional remedies in a separate lawsuit that could be brought by the plaintiff. General Statutes § 47a-46 provides:
"The party aggrieved may recover in a civil action double damages and his costs against the defendant, if it is found on the trial of a complaint brought under section 47a that he entered into the land, tenement or dwelling unit by force or after entry held the same by force or otherwise injured the party aggrieved in the manner described in section 47a."
The entry and detainer statutes do no limit the claims available to the parties in tort or contract. The pendency of a prior action between the same parties, in the same jurisdiction and to the same end is grounds for dismissal. The Southland Corporation v. Vernon, 1 Conn. App. 439, 451 (1984). This rule, which is not one of "unbending rigor" or "universal application" is not a rule of subject matter jurisdiction but of justice and equity, applicable where two law suits are virtually alike. Henry F. Raab Connecticut, Inc. v. J.W. Fisher Co., 183 Conn. 108, 114, (1981). When, however, the purposes of the two actions and the issues to be determined by them are different, the rule does not apply, Nielsen v. Nielsen, 3 Conn. App. 679 (1985).
The purpose of the entry and detainer action brought by the plaintiff was to regain possession of the premises from the defendant. The purpose of the instant matter is to seek damages, including injunctive relief, for the alleged tortuous conduct of the defendant under General Statutes § 47a-46. For that reason, the doctrine of prior pending action does not apply.
The defendant's motion to dismiss is denied. The plaintiff's objection to the motion is sustained.