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Selimoglu v. Phimvongsa

Court of Appeals of Connecticut

March 2, 2010

Zeliha SELIMOGLU
v.
Maly PHIMVONGSA et al.

Argued Dec. 3, 2009.

Page 122

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.

[119 Conn.App. 646] 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 [119 Conn.App. 647] the prior pending action doctrine.[1] We affirm the judgment of the trial court.

Page 123

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 [119 Conn.App. 648] 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)

Page 124

the plaintiff has a pending lawsuit against the same defendants before the same court, involving identical factual allegations, and (2) [119 Conn.App. 649] 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 ...


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