F. N. Builders, Inc. v. Yellen, No. Cv-00-0595749s (May 11, 2000)

2000 Conn. Super. Ct. 5972

• Court: Connecticut Superior Court
• Decided: May 11, 2000
• Docket: No. CV-00-0595749S
• Status: Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION The plaintiff, F. N. Builders, brought a four count complaint against the defendants, Ira Yellen, Michael Myers and Daniel Miller. The defendants move to dismiss the complaint for lack of jurisdiction, based on the prior pending action doctrine. Alternatively, the defendants assert that the complaint should be dismissed because the plaintiff has improperly alleged a vexatious litigation claim pertaining to an action that has not terminated in the plaintiff's favor.

The first three counts of the plaintiff's complaint sound in negligence, tortious interference with a business relationship and misuse of process respectively. These counts all seek to recover damages CT Page 5973 the plaintiff has allegedly suffered as a result of the appeal filed by the defendant's in an underlying action, such action being the appeal of a planning and zoning board decision to allow the plaintiff's to construct a residential subdivision near the defendants' properties. The defendants herein do not want such a subdivision constructed and the appeal seeks to reverse the zoning decision. That action will not litigate the same issues as the plaintiff's herein seek to adjudicate. The remedy requested in the present action is the seeking of monetary damages, whereas the relief sought in the prior action relates to the action of the local zoning authority. The two suits do not involve the same issues or the same remedies. Therefore, the prior pending action doctrine is not applicable and this court has jurisdiction over the defendants. Halperin v. Board of Education, 196 Conn. 647, 652-53,495 A.2d 264 (1985).

Accordingly, the motion to dismiss counts one, two and three is denied.

Count four, for vexatious litigation, is inadequate as pled. Such a claim requires the plaintiff to allege that the previous suit terminated in his favor. Zeller v. Consolini, 235 Conn. 417, 424, 667 A.2d 64 (1995). The outcome of the underlying action, will directly impact this count's validity. Therefore, the motion to dismiss count four is stayed pending a final resolution of Yellen v. Glastonbury Plan ZoningCommission, Superior Court, judicial district of Hartford, Docket No. 595654.

Stengel, J.