You represent the plaintiff in a civil lawsuit that has gone to verdict and judgment has entered. You have timely appealed the trial court’s decision to strike several counts of your Complaint during the early stages of the litigation. Although you had exercised your right to re-plead as to some of the stricken counts, you specifically stated in your Amended Complaint that you were preserving your appellate rights as to the others. You also filed a notice of intent to appeal.1 Nonetheless, your appeal has been dismissed because your appellate rights were hot properly preserved.
To Plead Or Not To Plead
This hypothetical deals with what is perhaps the most common decision a party is faced with after a motion to strike has been ruled upon – whether and how to re-plead. Though a seemingly benign question, it must be answered with great care because, as demonstrated above, the wrong response can have serious appellate ramifications. Before endeavoring to answer this question, a party must engage in a careful and cogent analysis of Connecticut’s rules of trial and appellate practice and legal precedent.
Under Connecticut Practice Book § 10-39, a motion to strike is properly used to challenge the sufficiency of a pleading. This challenge may be directed to a pleading in its entirety, or to portions thereof.2 As such, a ruling on a motion to strike may give rise to a final judgment that is immediately appealable;3 or may constitute an interlocutory ruling that must be preserved for appeal.4 The scope of this article is limited to interlocutory rulings that must be preserved for appeal. More specifically, it focuses on how parties may property juxtapose their right to appeal certain rulings with their right to re-plead certain rulings with their right to re-plead as to others.
Practice Book § 10-44 provides, in relevant part, that “[w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . .”5 However, it is well settled in Connecticut that if a new pleading is filed after a motion to strike has been granted, the former pleading is deemed withdrawn and any appellate rights related thereto are waived.6 Thus, a party may either “amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal” the judgment.7 “The choices are mutually exclusive.” 8
This rule is clear and can be easily reconciled with a situation involving a one count pleading that has been stricken.9 Reconciliation becomes more difficult, however, in the familiar situation wherein a multi-count pleading, or portions thereof, has been stricken and the aggrieved party wishes to re-plead as to some counts and preserve appellate rights as to others. The rule’s mutual exclusivity provision would seem to be an impediment to accomplishing a perfectly reasonable end.
However, in Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., a 2002 decision, the Connecticut Supreme Court suggests in footnote number 2 that it is acceptable practice to re-plead some stricken portions of a pleading while preserving appellate rights related to others.10 This footnote, however, merely states that the plaintiff in Suffield filed a timely amended complaint following the granting of a motion to strike which sought to preserve appellate rights as to the first and second counts and to re-plead as to the third and fourth counts.11 While the court’s comment certainly does not sanction such practice, it does not criticize it, either. Nonetheless, the commentary does little to illuminate what is proper practice in this regard.12 Moreover, as a practical matter, Connecticut’s rules plainly dictate that once an amended pleading is filed, it is as if the prior pleading or pleadings never existed. Under the Suffield approach, then, a very real question exists as to whether rights even exist which can be preserved.13
A better approach, as recognized by at least one Superior Court judge, is for the aggrieved party to concurrently file an amended pleading, which re-pleads some of the counts and a motion for judgment in favor of the prevailing party with respect to the remaining counts.14 This ensures preservation of appellate rights and allows a party to exercise the right to re-plead. While this approach appears to contravene the afore-stated mutual exclusivity rule, it is important to recognize that in Royce v. Westport, the decision routinely cited for defining this rule, a motion to strike was granted as to the complaint in its entirety and the plaintiff sought to re-plead the same exact complaint and challenge the ruling. This factual distinction, combined with the Suffield precedent that appears to sanction the practice of re-pleading some counts while preserving others for appeal and common sense should alleviate this concern.15
Beware of the “Late” Amendment
It is important to recognize that issues involving the rules discussed above tend to arise most often in cases where a pleading, or portion thereof, has been stricken. Even so, parties should not lose sight of the fact that appellate rights may flow just as readily when a motion to strike is denied. In Wilson v. Hyrniewicz, 38 Conn. App. 715 (1995), for example, a defendant lost the right to appeal a denial of a motion to strike portions of the plaintiff’s complaint by answering an amended complaint, filed during trial, in its entirety. While the defendant filed a notice of intend to appeal at the time his motion was denied, that notice lost any force it may have had when the amended complaint was filed and answered.16 The court stated “the denial of a motion to strike the original complaint cannot be appealed after the fling of an amended complaint that the defendant answers without moving to strike.”17 While not in the context of Practice Book § 10-44, this nonetheless emphasizes the degree of caution that should be exercised when seeking to preserve appellate rights following all rulings on motions to strike. Once a motion to strike has been filed and rules upon in a case, it should never be forgotten.
As the hypothetical above illustrates, you had the right idea in mind when responding to the trial court’s ruling on the defendant’s motion to strike but would have been wise to do more. While the steps you took to preserve your appellate rights ere not unreasonable,18 the Suffield ambiguity deserved additional scrutiny with an eye toward the nuances of appellate practice and procedure. Additional research and/or consulting with an appellate lawyer prior to responding to the court’s ruling on the motion to strike would have accomplished this and thus, saved the appeal.
In sum, there is a great deal to consider with respect to appellate rights when a motion to strike has been filed and ruled upon in a case. Extra caution should be exercised after such a ruling to avoid losing those appellate rights.
1 Connecticut Practice Book § 61-5 provides that a notice of intent to appeal is only necessary if the deferred appeal is to be taken from a judgment that disposes of all claims against a particular party such that that party is no longer a part of the ongoing case. In Tudhill Fin. v. Greenlaw, 61 Conn. App. 1, 8-9 (2000), however, the Connecticut Appellate Court refused to hear a plaintiff’s appeal of interlocutory grant of motion to strike where plaintiff neither moved for judgment on the stricken count not attempted to preserve its appeal.
2See generally Conn. Prac. Book § 10-39.
3See e.g., Conn. Prac. Book § 61-2.
4See e.g., Conn. Prac. Book § 61-4.
5 Conn. Prac. Book § 10-44.
6Royce v. Westport, 183 Conn. 177, 178-179 (1981).
7-9Id.
10 260 Conn. 766, 769 n.2 (2002).
11 Id.
12 See McQueeney v. Fithian, 1991 WI. 35569 (Conn. Super. Ct. Mar. 6, 1991) (Maloney, J.) (stating that the act of replacing allegations of a stricken count with a statement to the effect that appellate rights are being preserved is “plainly incorrect.”)
13See Good Humor Corp. v. Ricciuti, 160 Conn. 133, 136 (1970) (“The choice is left to the plaintiff, but once he files an amended pleading the ruling on the [motion to strike] ceases to be an issue.”)
14See St. Amand v. Kromish, 22 Conn. L. Rptr. 85 (April 17, 1998)(Flynn, J.) (determining that preservation of appellate rights under this scenario is accomplished by concurrently filing an amended pleading as to some of the counts and a motion for judgment in favor of the prevailing party as to the rest).
15It is important to note that the same steps need not be taken by defendants seeking to preserve appellate rights related to stricken special defenses. In Nowak v. Nowak, 175 Conn. 112, 118 (1978), the Connecticut Supreme Court recognized that filing new special defenses after previous special defenses had been stricken does not withdraw the defense previously filed.
16Id.
17Id. at 717-718.
18The author recognizes that the steps taken in the hypothetical may have sufficed under Suffield. However, because the proper procedure in this regard is really undefined, the author would opt for the approach recommended above.