Selimoglu v. Phimvongsa

• Court: Connecticut Court of Appeals
• Writing for the Court: Lavine
• Citation: Selimoglu v. Phimvongsa, 989 A.2d 121, 119 Conn.App. 645 (Conn. App. 2010)
• Decision Date: 02 March 2010
• Docket Number: No. 30607.,30607.
• Parties: Zeliha SELIMOGLU v. Maly PHIMVONGSA et al.

989 A.2d 121

119 Conn.App. 645

Zeliha SELIMOGLU v. Maly PHIMVONGSA et al.

No. 30607.

Appellate Court of Connecticut.

Argued December 3, 2009.

Decided March 2, 2010.

Juri E. Taalman, with whom, on the brief, was David W. Bush, for the appellant (plaintiff).

Kenneth J. Mastroni, for the appellees (defendants).

FLYNN, C.J., and LAVINE and FOTI, Js.

LAVINE, J.

The plaintiff, Zeliha Selimoglu, appeals from the judgment of the trial court, granting the motion to dismiss her second action filed by the defendants, Maly Phimvongsa and Eastern Psychological Services, LLC (Eastern). On appeal, the plaintiff claims that the court, in reaching its conclusion, improperly applied the prior pending action doctrine.¹ We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiff's appeal. The plaintiff commenced an action by filing with the Superior Court a three count complaint, returnable by February 12, 2008 (first case). The first complaint alleged the following facts. Phimvongsa was a licensed counselor employed by Eastern. The department of children and families (department), where the plaintiff worked as a social work supervisor, hired Eastern to be an outside contractor. In this role, Eastern provided case management services to the department, and Phimvongsa worked with a particular department client with mental health concerns.

On or about January 31, 2006, Phimvongsa was working with a department caseworker attempting to find residential placement for the department client. Phimvongsa and the caseworker were experiencing problems with the client and, some time after 5 p.m., called the plaintiff several times to ask for instruction. Department protocol prohibits outside contractors or department caseworkers from calling social work supervisors outside of normal business hours, which is from 8 a.m. until 5 p.m. The plaintiff instructed Phimvongsa to follow department protocol and to contact the department's telephone hotline to resolve any problems. At approximately 8:30 p.m., Phimvongsa and the caseworker brought the client to an office area in the department, which was not meant for contact between department clients and caseworkers, where the client chased and attacked the plaintiff, causing her "severe personal and emotional injuries. . . ." The plaintiff complained that (1) Phimvongsa was negligent in her actions, (2) Eastern was responsible for Phimvongsa's negligence pursuant to the doctrine of respondeat superior and (3) Eastern was negligent in its training of Phimvongsa and failing to inform her of department protocol. She requested monetary damages and costs.

The plaintiff thereafter brought a second action by filing a second complaint on May 7, 2008 (second case). The first and second counts of the second complaint are identical to those found in the first complaint. The third count of the second complaint differs from its counterpart in the first complaint only in that it added three allegations of Eastern's negligence and two paragraphs concerning the plaintiff's injuries and economic damages.² The prayers for relief alleged in both complaints are identical. The most notable difference between the two complaints is that there is a "Statement of [a] Licensed Professional Counselor" and a "Good Faith Certificate"³ attached to the second complaint.

The defendants filed a motion to dismiss the second complaint, claiming that "(1) the plaintiff has a pending lawsuit against the same defendants before the same court, involving identical factual allegations, and (2) the plaintiff's lawsuit is untimely pursuant to the statute of limitations governing said cause of action." The plaintiff filed an objection to the motion in which she claimed that the second complaint stated a cause of action in medical malpractice, whereas the first complaint espoused either an "unperfected malpractice" claim or, alternatively, a common-law negligence cause of action. The plaintiff also argued that she had filed a petition to extend the statute of limitations. Following argument, the court granted the defendants' motion to dismiss on the ground that the plaintiff had a prior pending action against the defendants involving identical factual allegations. The plaintiff now appeals from the court's dismissal of her second case.

Before we address the plaintiff's claim that the second complaint, purporting to allege medical malpractice, should not have been dismissed under the prior pending action doctrine, we first must articulate the relevant standard of review, which was recently clarified by our Supreme Court in Bayer v. Showmotion, Inc., 292 Conn. 381, 973 A.2d 1229 (2009). "[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. . . . Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). . . .

"The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets. . . . The rule, however, is not one of unbending rigor, nor of universal application, nor a principle of absolute law. . . . Accordingly, the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint. . . . We recognize that this statement of the scope of the doctrine's application, on the one hand, provides that the existence of claims that are virtually alike does not require dismissal in every case . . . while also suggesting that the doctrine is always applicable where the two actions are virtually alike, and in the same jurisdiction. . . .

"This language in our case law appears to have its genesis in the case of Hatch v. Spofford, 22 Conn. 485, 494 (1853), in which this court stated that the doctrine is not a rule of unbending rigor, nor of universal application, nor a principle of absolute law . . . it is rather a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. In Hatch, this court further recognized that a second suit is not, of course, to be abated and dismissed as vexatious, but all the attending circumstances are to be first carefully considered, and the true question will be, what is the aim of the plaintiff? . . . The only certain rule on this subject . . . is, where the parties are the same and the second suit is for the same matter, cause and thing, or the same object is to be attained, as in the first suit and in the same jurisdiction, the second shall abate and be dismissed. . . .

"In order to determine whether the actions are virtually alike,⁴ we must examine the pleadings . . . to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties. . . . The trial court's conclusion on the similarities between the cases is subject to our plenary review." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. at 395-98, 973 A.2d 1229.

The plaintiff claims that the prior pending action doctrine is not applicable in this case because the two matters are dissimilar. Specifically, she argues that her second case sounds in medical malpractice, not negligence. She supports her contention by focusing on the fact that she attached an expert opinion and good faith certificate; see footnote 2 of this...