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          MACDERMID, INC. v. COOKSON
              GROUP, PLC, ET AL.
                 (AC 35541)
               Lavine, Sheldon and Pellegrino, Js.
        Argued January 9—officially released April 22, 2014

  (Appeal from Superior Court, judicial district of
 Waterbury, Complex Litigation Docket, Dooley, J.)
  John R. Horvack, Jr., with whom, on the brief, were
Fatima Lahnin and John L. Cordani, Jr., for the appel-
lant (plaintiff).
   R. Bart Totten, pro hac vice, with whom was Nicole
J. Benjamin, for the appellees (defendants).
                          Opinion

   SHELDON, J. The plaintiff, MacDermid, Inc., appeals
from the judgment of the trial court dismissing three
counts1 of its complaint against the defendants, Cook-
son Group, PLC, Cookson Electronics, Inc., and
Enthone, Inc., on the basis of the prior pending action
doctrine.2 Although the plaintiff has acknowledged that
the allegations of its complaint in this action (MacDer-
mid II) and the allegations of its complaint in an earlier
action that is still pending (MacDermid I) are virtually
alike, the plaintiff claims on appeal that the defendants
should have been judicially estopped from seeking dis-
missal of its complaint in this action under the prior
pending action doctrine. We agree and, accordingly,
reverse the judgment of the trial court.3
   The following facts, as set forth by the trial court,
are relevant to the plaintiff’s claims on appeal. ‘‘MacDer-
mid I was commenced by service of a writ, summons
and complaint in June 2009. The operative complaint
alleges that the Cookson defendants, direct competitors
of [the plaintiff], breached two separate letter
agreements, misappropriated trade secrets, committed
computer crimes and violated [the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq.], all in connection with the sale of [the
plaintiff’s] stock. In essence, the Cookson defendants
are alleged to have submitted a competitive bid for the
purchase of the stock with ill-gotten information when,
in fact, they had no intention or ability to consummate
any such purchase. As a result, the plaintiff alleges that
the purchase price [of the stock] was increased causing
the plaintiff to incur substantial debt and otherwise
causing financial damage to the plaintiff.4
   ‘‘In February 2012, [the plaintiff] sought to amend
its complaint in MacDermid I. The proposed amended
complaint included allegations of tortious conduct by
[the] Cookson [defendants], as well as . . . a former
employee of [the plaintiff], Terrence Copeland, who
began working for the Cookson defendants, unbe-
knownst to [the plaintiff].5 The amendment sought to
add claims of fraud and tortious interference with busi-
ness expectations in connection with the bid/buy out
process. After extensive briefing and argument, the
court, Dubay, J., denied the motion to amend, though
it did not articulate the basis or reason for the decision.6
The plaintiff filed a motion for reconsideration and rear-
gument, which the court, Dubay, J., denied.
   ‘‘Thereafter, in August 2012, the plaintiff filed
a[nother] motion to amend the [MacDermid I] com-
plaint to include many of the same factual allegations
[that] it sought to include in the February 2012 amend-
ment, though espousing a different cause of action, an
additional [breach of] contract claim, which did not
implicate the statute of limitations. Th[e] court permit-
ted the amendment. . . .
   ‘‘After the court’s denial of the motion to reargue
and for reconsideration of the February 2012 motion
to amend, the plaintiff commenced this action, MacDer-
mid II, alleging the same facts and causes of action it
sought to include by way of amendment to MacDermid
I, as well as repeating the breach of contract claims
currently pending in MacDermid I.7 MacDermid II also
includes a claim under Connecticut’s Uniform Securi-
ties Act, [(CUSA), General Statutes § 36b-2 et seq.]. At
this juncture, there is no dispute as to the similarity of
the allegations in MacDermid II and the amendment
sought, though denied, in MacDermid I.’’ (Footnotes
altered.)
   Determining that the allegations in MacDermid II
and the allegations in MacDermid I were virtually alike,
the court went on to analyze and, ultimately, to reject,
the plaintiff’s equitable claims opposing the application
of the prior pending action doctrine, including its claim
of judicial estoppel. The plaintiff claimed that the defen-
dants should be judicially estopped from seeking dis-
missal of its complaint in this action under the prior
pending action doctrine because their argument in sup-
port of dismissal contradicts their prior successful argu-
ment in MacDermid I opposing the plaintiff’s motion
to amend its complaint in that action. The court dis-
agreed and granted the defendants’ motion to dismiss.
This appeal followed. Additional facts will be set forth
as necessary.
   ‘‘[T]he prior pending action doctrine permits the
court to dismiss a second case that raises issues cur-
rently 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 sec-
ond, and, therefore, it must be oppressive and vexa-
tious. This is a rule of justice and equity, generally
applicable, and always, where the two suits are virtually
alike, and in the same jurisdiction. . . . The policy
behind the doctrine is to prevent unnecessary litigation
that places a burden on crowded court dockets.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Kleinman v. Chapnick, 140 Conn. App. 500, 505, 59
A.3d 373 (2013).
   ‘‘[T]he 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 adjudicate the same underlying rights
of the parties, but perhaps 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 adjudi-
cate the same underlying rights of the parties. . . . The
trial court’s conclusion on the similarities between the
cases is subject to our plenary review. . . .
   ‘‘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, but not exactly alike, however, the trial
court exercises discretion in determining whether the
circumstances justify dismissal of the second action.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Id., 505–506.
   Here, the trial court concluded that the first two
counts of the MacDermid II complaint were identical
to the first two counts of the MacDermid I complaint,
and therefore that the dismissal of those counts was
mandatory. The court further concluded, and the parties
agreed, that the remaining three counts of the MacDer-
mid II complaint, alleging fraud, tortious interference
with business expectancies and violations of CUSA, and
the claims brought and still pending in MacDermid I
were virtually alike, and thus, in the exercise of its
discretion, dismissed those counts as well. In so doing,
the court concluded that MacDermid II was barred by
the prior pending action doctrine and that the claims
alleged therein could not be saved by the equitable
arguments advanced by the plaintiff. Specifically, the
court rejected the plaintiff’s judicial estoppel argument,
finding that ‘‘although the defendants’ arguments, at
first blush, [seem] inconsistent, the issues argued at the
two proceedings, being distinct, preclude a finding that
[their position on the motion to dismiss in MacDermid
II was inconsistent with their position on the earlier
request to amend in MacDermid I].’’ The court further
determined that ‘‘there is no danger of inconsistent
results impacting the integrity of the judiciary under
the circumstances present here.’’
   As noted, the plaintiff does not challenge on appeal
the dismissal of the first two counts of MacDermid
II, but claims that the court abused its discretion in
dismissing the three last counts of MacDermid II under
the prior pending action doctrine because the defen-
dants should be judicially estopped from pursuing dis-
missal under that doctrine. The plaintiff contends that
the defendants should be judicially estopped from
asserting the prior pending action doctrine because
their argument in support of dismissal contradicts their
prior successful argument in MacDermid I opposing
the plaintiff’s motion for leave to amend its complaint.
We agree.
  ‘‘[J]udicial estoppel prevents a party in a legal pro-
ceeding from taking a position contrary to a position the
party has taken in an earlier proceeding. . . . [J]udicial
estoppel serves interests different from those served
by equitable estoppel, which is designed to ensure fair-
ness in the relationship between parties. . . . The
courts invoke judicial estoppel as a means to preserve
the sanctity of the oath or to protect judicial integrity
by avoiding the risk of inconsistent results in two pro-
ceedings. . . . [S]ee . . . New Hampshire v. Maine,
532 U.S. 742, 749–50, 121 S. Ct. 1808, 149 L. Ed. 2d 968
(2001) (judicial estoppel protect[s] the integrity of the
judicial process . . . by prohibiting parties from delib-
erately changing positions according to the exigencies
of the moment . . .).
   ‘‘Typically, judicial estoppel will apply if: 1) a party’s
later position is clearly inconsistent with its earlier posi-
tion; 2) the party’s former position has been adopted
in some way by the court in the earlier proceeding; and
3) the party asserting the two positions would derive
an unfair advantage against the party seeking estoppel.
. . . We further limit judicial estoppel to situations
where the risk of inconsistent results with its impact
on judicial integrity is certain. . . . Thus, courts gener-
ally will not apply the doctrine if the first statement or
omission was the result of a good faith mistake . . .
or an unintentional error.’’ (Citations omitted; internal
quotation marks omitted.) Assn. Resources, Inc. v. Wall,
298 Conn. 145, 169–70, 2 A.3d 873 (2010). ‘‘Because the
rule is intended to prevent improper use of judicial
machinery . . . judicial estoppel is an equitable doc-
trine invoked by a court at its discretion . . . . Accord-
ingly, our review of the trial court’s decision not to
invoke the doctrine is for abuse of discretion.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
171. Thus, our analysis of the application of the doctrine
of judicial estoppel requires an examination and com-
parison of the defendants’ argument in opposition to
the plaintiff’s request to amend its complaint in MacDer-
mid I and their argument in favor or dismissing the
plaintiff’s complaint in this case, MacDermid II.8
   On February 21, 2012, the plaintiff filed a motion for
leave to amend its complaint in MacDermid I. In seeking
to amend its complaint, the plaintiff argued that ‘‘[t]he
proposed new counts arise from the same occurrence
that is the subject of [the plaintiff’s] complaint, namely,
[the] Cookson [defendants] illegal use of confidential
business information [belonging to the plaintiff] in con-
nection with the competitive bidding and due diligence
process for the purchase of [the plaintiff’s stock]. As a
result, amending the complaint to include the proposed
counts would promote a complete adjudication of the
dispute among the parties.’’ The plaintiff claimed that
the proposed new counts and the related factual infor-
mation would neither prejudice the defendants nor
delay the proceedings, and that, in fact, the proposed
amendment was the result of information first discov-
ered by the plaintiff in the course of discovery in
that case.
   In opposition to the plaintiff’s motion for leave to
amend its complaint, the defendants filed a written
objection dated March 7, 2012, in which they argued
that ‘‘none of the facts pled in [the plaintiff’s] first six
[versions of its] complaint concerned representations
alleged to have been made by the Cookson defendants
before or after entering into the letter agreement.’’ The
defendants thus argued that the plaintiff’s proposed
amended complaint would ‘‘allege three new causes of
action, premised on [eighteen] new paragraphs replete
with new factual allegations. . . . These new allega-
tions present entirely different facts . . . .’’9 The defen-
dants concluded that the plaintiff’s proposed
amendments alleged a ‘‘new and different factual situa-
tion’’ that prevented the application of the relation
back doctrine.
   The court summarily denied the plaintiff’s motion
for leave to amend its complaint, which was based
primarily upon the plaintiff’s contention that the claims
it proposed to add to the complaint had been fraudu-
lently concealed from it by the defendants. The court
denied the plaintiff’s motion to reargue, stating that the
plaintiff’s allegation of fraudulent concealment ‘‘in no
way changes the court’s consideration as to whether
[the] proposed amendment states a new cause of action
or relates back.’’ Although the court did not issue a
memorandum of decision articulating the factual and
legal bases for its denial of the plaintiff’s request to
amend, it is clear from its ruling on the motion to rear-
gue that it had accepted the defendants’ arguments that
the proposed new allegations stated a new cause of
action that did not relate back to the allegations of the
original complaint in MacDermid I.
   In their motion to dismiss the complaint in MacDer-
mid II, filed on October 25, 2012, only approximately
seven months after opposing the plaintiff’s motion for
leave to amend in MacDermid I on the ground that the
plaintiff’s proposed amendment in that case raised new
causes of action based upon newly alleged facts, the
defendants claimed that this case, MacDermid II, con-
cerns ‘‘the same business transaction,’’ ‘‘arises out of the
same factual background,’’ and ‘‘s[eeks] the identical
relief’’ as the plaintiff’s claims in MacDermid I. In fact,
the defendants claimed in their motion to dismiss that
the allegations in the two complaints are ‘‘virtually alike
because they arise out of the same factual background,
and between the same parties and seek the same relief.’’
The defendants also described the allegations of the
MacDermid II complaint as ‘‘redundant’’ in nature, and
contended that ‘‘the two cases were brought to adjudi-
cate the same underlying rights.’’ The defendants
argued that ‘‘[a]lthough [the plaintiff’s] complaint in this
case interposes different legal theories to characterize
how the defendants’ actions allegedly resulted in liabil-
ity, the conduct that [the plaintiff] alleges was wrongful
and the relief that [it] seeks in this case is the same as
the conduct that [the plaintiff] alleges was wrongful
and the relief that [it] seeks in MacDermid I.’’ The
defendants claimed that ‘‘[i]n this case, [the plaintiff]
has merely [repleaded] the same allegations advanced
in MacDermid I under the guise of some new legal
theories.’’
   In sum, the defendants argued in opposition to the
plaintiff’s motion for leave to amend its complaint in
MacDermid I that the proposed amendment presented
new causes of action based upon new facts, and that,
on that basis, the amendment should not be permitted.
The defendants persuaded the court to agree and the
court thus denied the plaintiff’s motion for leave to
amend its complaint. The defendants have now changed
their position, claiming that those additional allegations
arise from the same factual background as the allega-
tions in MacDermid I and that they are redundant. This
argument is entirely contrary to the earlier position
on which the defendants prevailed.10 This duplicitous
conduct by the defendants epitomizes the behavior of
a party ‘‘deliberately changing positions according to
the exigencies of the moment.’’ It is difficult to imagine
a case that more strongly cries out for the application
of judicial estoppel than this one.11 We conclude that
the defendants should have been judicially estopped
from seeking dismissal of the plaintiff’s complaint on
the basis of the prior pending action doctrine, and thus
that the trial court abused its discretion in dismissing
the plaintiff’s action.
  The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
      In this opinion the other judges concurred.
  1
     The court also dismissed the two other counts of the plaintiff’s complaint,
but the plaintiff has not challenged that ruling. The three counts that are
the subject of this appeal represent the remaining counts of the plaintiff’s
complaint in this action.
   2
     We refer in this opinion to the Cookson Group, PLC, and Cookson
Electronics, Inc., collectively, as the Cookson defendants.
   3
     The plaintiff also claims that the purposes for which the prior pending
action doctrine was developed are not implicated in this case, that it is
simply seeking to have its claims heard on the merits and thus that the
principles of equity dictate that the court should have exercised its discretion
and denied the defendants’ motion to dismiss. The trial court concluded
that the plaintiff’s filing of MacDermid II was not intended to vex or harass,
but, nevertheless applied the prior pending action doctrine and granted the
defendants’ motion to dismiss on the ground that the filing of MacDermid
II constituted an attempted ‘‘end run around’’ the trial court’s earlier denial
of the plaintiff’s motion to amend in MacDermid I. The court refused to
‘‘countenance such maneuvering.’’ Because we conclude that the defendants
are judicially estopped from asserting a prior pending action claim, we need
not address this additional claim of error.
   4
     MacDermid I also includes claims against a former consultant with the
plaintiff, David North, for breach of contract, violations of the Connecticut
Uniform Securities Act (CUSA), General Statutes § 36b-2 et seq., violations
of CUTPA, and other claims. North is not named in MacDermid II.
   5
     ‘‘Copeland was not cited in as a named defendant.’’
   6
     ‘‘The defendants had argued that the amendments sounding in tort were
barred by the statute of limitations as well as that they were untimely and
prejudicial if permitted.’’
   7
     ‘‘When MacDermid II was filed, th[e trial] court had not yet ruled on
the motion to amend in MacDermid I, to add the second breach of con-
tract claim.’’
   8
     The defendants do not claim that their argument in either proceeding
was the result of a mistake or unintentional error.
   9
     In opposing the request to amend, the defendants also argued that the
court lacked subject matter jurisdiction to adjudicate the plaintiff’s proposed
securities claim and that the plaintiff’s new claims were barred by the
applicable statute of limitations.
   10
      In dismissing the plaintiff’s complaint in the present case, the trial court
relied on this court’s decision in Sandvig v. A. Dubreuil & Sons, Inc., 68
Conn. App. 79, 789 A.2d 1012 (2002), appeal dismissed, 270 Conn. 90, 851
A.2d 290 (2004), in which this court held: ‘‘We conclude that the relation
back doctrine was properly applied in light of the prior pending action
doctrine because although the pleadings in the two actions were virtually
alike, the facts necessary to prove the allegations in the amended complaint
were new and different from those necessary to the original complaint.’’
(Emphasis in original.) Id., 88. This case is distinguishable from Sandvig
for two reasons. First, in this case, the defendants have argued that the
complaint in this action arises from the ‘‘same factual background’’ as the
complaint in MacDermid I and that the allegations are redundant. Second,
the court in Sandvig did not address the doctrine of judicial estoppel, nor
could it have, because that doctrine was not first considered as a matter
of Connecticut law until 2010. See Assn. Resources, Inc. v. Wall, supra, 298
Conn. 169.
   11
      In rejecting the plaintiff’s judicial estoppel argument, the trial court
emphasized the fact that the two proceedings at issue in this case, the
plaintiff’s request to amend its complaint in MacDermid I and the defendants’
motion to dismiss the complaint in MacDermid II, are distinct proceedings
that precluded a finding that the first requirement of judicial estoppel was
met. To be sure, there are instances in which a party may properly assert
different positions while dealing with distinctly different legal proceedings.
Our Supreme Court has held, however, as the plaintiff aptly points out, that
the ‘‘transaction or occurrence’’ test for determining whether newly pleaded
claims relate back to the original claims in the context of a request to amend
a complaint and in resolving the issue of whether a case should be dismissed
pursuant to the prior pending action doctrine are the same. Sherman v.
Ronco, 294 Conn. 548, 555–56, 985 A.2d 1042 (2010); Beaudoin v. Town Oil
Co., 207 Conn. 575, 587–88, 542 A.2d 1124 (1988). In other words, allegations
cannot consistently be held to be separate and distinct in the context of a
request to amend, but identical in the context of a motion to dismiss based
upon the prior pending action doctrine.
