Opinion
No. CV 10-6012430-S
January 28, 2011
MEMORANDUM OF DECISION ON MOTION TO STRIKE
FACTS
This case is a probate appeal brought by plaintiff Patricia Sherman to challenge certain decrees by the Hartford Probate Court concerning her status as the plenary guardian of her daughter, Deborah Banks. The case now comes before the Court on the Motion to Strike of defendant Peter H. O'Meara, Commissioner of the State of Connecticut Department of Developmental Services (DDS). The case arises against the background of the following historical and procedural facts.
In her Complaint, the plaintiff alleges that Deborah Banks an adult with mental retardation. Prior to June 3, 2010, the plaintiff was Ms. Banks' plenary guardian. On or about September 28, 2009, the Southwick (MA) Police Department commenced an investigation into an alleged assault by a third party on Ms. Banks. Once the investigation was commenced, the State of Connecticut Office of Protection and Advocacy for persons with disabilities (OPA) issued an immediate protective service plan (IPSP) for Ms. Banks. According to DDS, the IPSP restricted the plaintiff from bringing Ms. Banks to the plaintiff's residence and from visiting with Ms. Banks without supervision. According to the Complaint, the Southwick Police Department issued an investigative report and closed its investigation. On or about May 12, 2010, defendant Kathleen J. Kowalyshyn, Ms. Banks' attorney, filed an application for removal of the plaintiff as Ms. Banks' plenary guardian and standby plenary guardian of the person, alleging that the plaintiff had physically abused Ms. Banks. The plaintiff alleges that at all relevant times DDS was listed as an interested party in the probate guardianship matter.
General Statutes § 46a-11a provides, in pertinent part: "(8) `Person with mental retardation' means a person who: (A) has mental retardation, as defined in Section 1-1g, (B) is at least the age of eighteen and under the age of sixty, except for purposes of subsection (b) of Section 46a-11c, is eighteen years of age or older, and (C) is substantially unable to protect himself from abuse and includes all such persons living in residential facilities under the jurisdiction of the Department of Developmental Services."
General Statutes § 45a-669 provides, in pertinent part: "(a) `Plenary guardian of a person with. mental retardation' means a person, legally authorized state official, or private nonprofit corporation, except a hospital or nursing home as defined in Section 19a-521, appointed by a court of probate pursuant to. the provisions of Sections 45a-669 to 45a-684, inclusive, to supervise all aspects of the care of an adult person, as enumerated in subsection (d) of Section 45a-677, for the benefit of such adult, who by reason of the severity of his mental retardation, has been determined to be totally unable to meet essential requirements for his physical health or safety and totally unable to make informed decisions about matters related to his care."
Policy No. I.F.PO.001 of the Department of Developmental Services defines an immediate protective service plan (IPSP) as: "An immediate plan requested by the Office of Protection and Advocacy to the DDS to take immediate actions or measures necessary to protect the health and safety of an individual with mental retardation, who may or may not be known to the department." See http://www.ct.gov/dds/lib/dds/dds_manual/if/abuse_neglect/ ifpo001_abuse_neglect_policy_web_rev_8-09.pdf (last visited January 3, 2011).
On June 3, 2010, the Probate Court, District of Hartford, held a hearing on the application for removal. On that same day, the Probate Court issued a decree, which included a finding that the Probate Court does not think that the plaintiff "hit" Ms. Banks. The decree suspended the plenary guardianship of the plaintiff and the standby plenary guardianship of Ms. Banks' brother, Jeffrey Banks, and appointed Attorney Francine Davis Early as temporary plenary guardian pending the conclusion of the OPA's ongoing investigation into the allegation that the plaintiff had abused Ms. Banks. Under the decree, the plaintiff is entitled to receive the information from Ms. Banks' providers to which a guardian would be entitled. The decree also suspended visitation with the plaintiff and Jeffrey Banks until Ms. Banks has indicated a willingness to have it re-commence or until further ordered by the Probate Court. The opportunity for visitation should be encouraged and offered to Ms. Banks regularly and at all times, and under such terms (such as whether the visits should be supervised, and at which locations visitation should take place) as are established by Ms. Banks' doctor. In the decree, the Probate Court stated that it wants the investigation resolved by the OPA and DDS in a timely manner.
On July 2, 2010, the plaintiff filed an appeal in this Court of the June 3, 2010 Probate Court decree. The matter presently before the Court is DDS' motion to strike. In its motion, the DDS seeks the following relief: to have it stricken as a defendant, on the ground that it has been misjoined; to strike paragraph d of the plaintiff's request for relief, on the ground that the Court lacks authority to grant it; and to strike paragraph thirty-one of the plaintiff's reasons for appeal, on the ground that it fails to state a claim upon which relief can be granted.
A court order purporting to decide the present motion to strike was incorrectly entered on November 8, 2010. That order was vacated by another order, dated November 10, 2010.
ANALYSIS
"An appeal from a Probate Court to the Superior Court is not an ordinary civil action . . . When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate . . . In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court . . . When . . . no record was made of the Probate Court proceedings, the absence of a record requires a trial de novo." (Citation omitted; internal quotation marks omitted.) Silverstein v. Laschever, 113 Conn.App. 404, 409, 970 A.2d 123 (2009).
"[T]he mere taking of an appeal from a probate decree does not in and of itself vacate or suspend the decree . . . [T]he probate decree appealed from continues in full force until the appellate tribunal otherwise determines . . . A Probate Court decree is conclusive on all of the parties until or unless the decree is disaffirmed on appeal . . . [T]he decree of a court of probate, in a matter within its jurisdiction, is as conclusive upon the parties, as the judgment or decree of any other court; and the superior court as a court of equity, has no more power to correct, alter, or vary it, than it has to alter or vary the judgments of any other court in the state." (Citations omitted; internal quotation marks omitted.) Id., 414.
Probate appeals are governed by General Statutes § 45a-186. "The meaning of § 45a-186(a), as amended by [Public Acts 2007, No. 07-116] ( P.A. 07-116), ascertained both from its text and in relation to other statutes, is plain and unambiguous. It provides that an appeal of an order of the Probate Court is commenced by filing a complaint in the Superior Court. A complaint is filed when it is lodged with the clerk of the court . . . The significant changes to this statute, brought about by passage of P.A. 07-116 . . . reveal a clear legislative intention to consolidate and even to simplify and to clarify the probate appeal process." (Citation omitted; internal quotation marks omitted.) Corneroli v. D'Amico, 116 Conn.App. 59, 65, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009).
General Statutes § 45a-186 provides, in pertinent part: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court."
Public Acts 2007, No. 07-116 took effect on October 1, 2007.
First, this Court must consider whether it has jurisdiction to decide this appeal. "[O]ur Supreme Court has stated that `the often thorny issue as to whether a judgment of the Superior Court is a final judgment for purposes of appeal; see General Statutes § 52-263 (final judgment required to prosecute appeal from the Superior Court); is not involved in an appeal from a judgment of a Probate Court . . . since the right of appeal at issue is available under [General Statutes] § 45-288 [now § 45a-186] to [a]ny person aggrieved by any order, denial or decree of a court of probate in any matter, the section does not require a final judgment.'" Vredenburgh v. Norwalk Probate Court, 118 Conn.App. 436, 439 n. 6, 984 A.2d 773 (2009). Thus, the fact that the orders appealed from were temporary does not deprive this Court of jurisdiction.
"[T]he absence of aggrievement, as required by [§ 45a-186], is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." (Internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn.App. 591, 595, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002). The plain language of § 45a-186 provides: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court." (Emphasis added). Statutory aggrievement of fiduciaries who have been removed is "specially provided by law"; § 45a-186; in General Statutes § 45a-243, which provides: "(a) When any fiduciary has been removed by a court of probate, as provided in Section 45a-242, the fiduciary may appeal from such order of removal in the manner provided in Sections 45a-186 to 45a-193, inclusive."
The term "fiduciary," as it is used in § 45a-243, includes guardians. General Statutes 45a-199 provides, in pertinent part: "As used in Sections . . . 45a-242 to 45a-244, inclusive, unless otherwise defined or unless otherwise required by the context, `fiduciary' includes an executor, administrator, trustee, conservator or guardian." General Statutes § 45a-242 provides, in pertinent part: "(a) Grounds for removal of fiduciary. The court of probate having jurisdiction may, upon . . . the application and complaint of any person interested . . . after notice and hearing, remove any fiduciary if . . . (3) because of unfitness, unwillingness or persistent failure of the fiduciary to administer the estate effectively, the court determines that removal of the fiduciary best serves the interests of the beneficiaries."
A final judgment of the Probate Court is not a necessary prerequisite for the present appeal. Vredenburgh v. Norwalk Probate Court, supra, 118 Conn.App. 439 n. 6. The plaintiff's statutory aggrievement entitling her to appeal the Probate Court's decree to the Superior Court is "specially provided by law"; § 45a-186; in § 45a-243, which provides that fiduciaries may appeal an order of removal. The plaintiff was Ms. Banks' guardian, and thus is a fiduciary under § 45a-199, and she was removed due to an allegation of abuse, which falls under § 45a-242(3), unfitness. Thus this Court has jurisdiction to decide this appeal.
"Practice Book § 10-76(a) provides: `Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day; and pleadings shall thereafter follow in analogy to civil actions.'" Martino v. Scalzo, 113 Conn.App. 240, 245, 966 A.2d 339, cert. denied, CT Page 3890 293 Conn. 904, 976 A.2d 705 (2009). The reasons for appeal serve the purpose of defining the issues to be reviewed: "[T]he issues presented for review are defined by the reasons for appeal, [and] `[t]he Superior Court cannot consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked. This is so even with the consent of the parties to the appeal because the court has subject matter jurisdiction limited only to the order or decree appealed from.'" Beckenstein v. Probate Appeal, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 054005901 (January 30, 2009, Stevens, J.), quoting Silverstein's Appeal from Probate, 13 Conn.App. 45, 58, 554 A.2d 1223 (1987). "[J]urisdiction over a probate appeal attaches when the appeal properly is taken and allowed and . . . the requirements of mesne process do not apply to probate appeals." Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008).
DDS initially argues that it is misjoined as a defendant in this appeal because it was not a party in the underlying probate matter, there is no relief that the court may order it to provide, and the IPSPs were not incorporated into the decree from which the plaintiff appeals. The plaintiff counters that DDS is a proper party to this appeal because it has a significant interest in the appeal; DDS was an interested party in the Probate Court hearing; several representatives from DDS appeared at and participated in the hearing; and pursuant to § 45a-186, each interested party in a probate hearing is a necessary party to the probate appeal.
General Statutes § 45a-186 provides, in pertinent part: "(d) If service has not been made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served."
In typical civil actions, "[n]aming an improper person as a party in a legal action constitutes misjoinder . . . The exclusive remedy for misjoinder of parties is by motion to strike." (Citation omitted.) Zanoni v. Hudon, 42 Conn.App. 70, 73, 678 A.2d 12 (1996). "A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).
Nevertheless, our Supreme Court "has recognized that appeals from probate differ from civil actions, and that they are not adversarial actions between parties. Slattery v. Woodin, 90 Conn. 48, 50, 96 A.178 (1915). "Whether named in the record as a party or not, any person in interest may appear and defend against the appeal . . . [T]here is no occasion in probate appeals for citing in new parties as in an ordinary civil action. 1 W. Locke P. Kohn, Connecticut Probate Practice, The Probate Court, § 211, pp. 433-34 (1951)." (Internal quotation marks omitted.) Sidley v. Estate of Hodge, Superior Court, judicial district of New Haven, Docket No. 29 23 20 (October 29, 1990, Celotto, J.) ( 2 Conn. L. Rptr. 686, 688). In Sidley v. Estate of Hodge, an heir moved to strike the appearance of the administrator of the estate on the grounds that the administrator was never made a party to the probate appeal. The Court denied the motion because the administrator had an interest in the outcome of the appeal, and thus he was entitled to appear in and defend against the appeal.
"Appeals from probate are not `actions' or `civil causes or actions between party and party.'" Slattery v. Woodin, 90 Conn. 48, 50, 96 A. 178 (1915).
Although they were amended in 2007 by P.A. 07-116, the probate statutes show that a probate appeal is still not an adversarial process, but instead is a proceeding involving "interested parties." According to § 45a-186(b): "Each person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party. The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal." See also George v. St. Ann's Church, 182 Conn. 322, 324, 438 A.2d 97 (1980). Section § 45a-186(d) provides in pertinent part: "If service has not been made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served."
"Once served and made a party to the appeal, however, [an interested party] has the option to choose for himself whether to appear, defend and contest against the appeal or to not appear and contest the proceedings affecting his pecuniary interests." Palmer v. Estate of Pawelczyk, Superior Court, judicial district of Fairfield, Docket No. 4022946 (November 03, 2008, Arnold, J.) (citing Cornelius v. Dept. of Banking, 94 Conn.App. 547, 555, 893 A.2d 472, cert. denied, 278 Conn. 913, 899 A.2d 37 (2006). ("[A]n essential function of notice is to enable the recipient to choose for himself whether to appear or default, acquiesce or contest . . . with regard to proceedings affecting the recipient's interests.")).
Since probate appeals involve interested parties and are not adversarial proceedings, the concept of misjoinder is inapplicable. As an interested party, DDS has the option "to choose for [itself] whether to appear or default, acquiesce or contest . . . with regard to proceedings affecting [its] interests." Cornelius v. Dept. of Banking, 94 Conn.App. 547, 555, 893 A.2d 472, cert. denied, 278 Conn. 913, 899 A.2d 37 (2006). Therefore, the motion to strike DDS due to misjoinder must be denied.
Second, DDS argues that paragraph d of the plaintiff's request for relief, in which the plaintiff requests "an order terminating any and all existing immediate protective service plans for Deborah Banks," should be stricken because the IPSPs are not under the jurisdiction of the Probate Court and they were not incorporated into the June 3, 2010 decree from which the plaintiff appeals. DDS contends that, because the Superior Court sits as a probate court during an appeal, it lacks authority to order the termination of IPSPs. The plaintiff argues that it is improper to use a motion to strike to eliminate single paragraphs of pleadings.
Practice Book § 10-39 provides, in pertinent part: "(a) Whenever any party wishes to contest . . . (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
"The Superior Court . . . in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations . . . In acting on an appeal from probate, the Superior Court does not exercise the jurisdictional powers vested in it by the constitution but, instead, exercises a special and limited jurisdiction conferred on it by the statutes." (Internal quotation marks omitted.) Corneroli v. D'Amico, 116 Conn.App. 59, 63, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009). "While the Superior Court acts as a court of limited and statutory jurisdiction in probate appeals, this does not mean that court rules which apply to other civil actions do not apply to probate appeals." Bencivenga v. Estate of Bencivenga, Superior Court, judicial district of Ansonia-Milford, Docket Nos. 090032545, 090032390 (March 20, 1991, Fuller, J.) [ 3 Conn. L. Rptr. 367].
"In a probate appeal, the Superior Court cannot consider events that occurred after the issuance of the order or decree appealed from . . . The appeal brings to the Superior Court only the order appealed from. The order remains intact until modified by a judgment of the Superior Court . . . The Superior Court may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked." (Internal quotation marks omitted.) Marshall v. Marshall, 71 Conn.App. 565, 569-70, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002), quoting Silverstein's Appeal from Probate, supra, 13 Conn.App. 53-54. "The appeal from probate does not vacate the decree appealed from, nor does it `lift' or surrender the entire matter from the Probate Court into the Superior Court for further proceedings . . . beyond the order or decree appealed from. On the contrary, it leaves the matter as it was in the Probate Court, there to be continued with and completed according to law, presenting in the meanwhile to the Superior Court for redetermination . . . the special and limited issues embraced within the particular decree appealed from . . . The judgment on appeal should affirm or reverse the decree appealed from, in whole or in part, and answer the questions raised by the reasons of appeal . . . The proper judgment in an appeal from an order or decree should be returned to the Probate Court for further determination and termination of the proceedings in that court."(Citations omitted.) Silverstein's Appeal from Probate, supra, 13 Conn.App. 45, 52-53.
IPSPs are mandated by General Statutes § 46a-11d, which provides, in pertinent part, as follows: "(a) If it is determined that a person with mental retardation has been abused or neglected, the director [of OPA] shall refer the case to the Department of Developmental Services for the development and implementation of a plan of protective services." Pursuant to § 46a-11d, the implementation of Ms. Bank's IPSP was triggered by her allegation of abuse. The Court can find no authority for the proposition that the Probate Court has the power to interfere with an IPSP.
It appears that the plaintiff has a remedy for disputing the IPSP. Regarding individual plans for clients of DDS, DDS Policy No. I.C.1.PO.002 provides, in pertinent part: "At the time the plan is developed, the case manager will advise the individual, and his or her family, guardian, advocate, or other legal representative of their right to a Programmatic Administrative Review (PAR)." Available at http://www.ct.gov/dds/lib/dds/ dds_manual/icl/iclpo002_indivplng_policy.pdf (last visited January 3, 2011).
In the present appeal from probate, this Court "may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked." (Internal quotation marks omitted.) Marshall v. Marshall, supra, 71 Conn.App. 570. Because the decree being appealed does not contain a court order to implement the IPSP, the IPSP is beyond the scope of this appeal. Hence, the motion to strike paragraph d of the plaintiff's request for relief must be granted.
As a third ground for its motion, DDS claims that paragraph thirty-one of the plaintiff's reasons for appeal should be stricken because there is no relief that the Superior Court can provide for the alleged failure of DDS and OPA to comply with the Probate Court's order. DDS argues that the plaintiff's remedy for the alleged noncompliance with the Probate Court's order is to seek enforcement of that order in the Probate Court.
The plaintiff argues that DDS may not move to strike reasons of appeal because technical rules as to the formation and determination of issues are not applicable to reasons of appeal. The plaintiff contends that it is improper to use a motion to strike to attempt to eliminate single paragraphs of her pleadings because the disputed paragraphs do not attempt to set forth all of the essential allegations of a cause of action. The plaintiff argues that the reasons for the appeal comply with case law requirements because they are reasonably specific and properly provide notice of the issues to be tried.
"[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense." (Citation omitted; internal quotation marks omitted.) Vanstean-Holland v. Lavigne, Superior Court, judicial district of New London, Docket No. CV 08 5007959 (September 2, 2009, Martin, J.); see also Zamstein v. Marvasti, 240 Conn. 549, 553, 692 A.2d 781 (1997) (noting that trial court "struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium").
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). It has been stated that where "challenged paragraphs are legally insufficient to support a probate appeal [they] are proper subjects of a motion to strike . . . [T]he plaintiff retains the ability to plead over pursuant to Practice Book § 10-44." DeChristoforo v. Botte, Superior Court, judicial district of New Haven, Docket No. 054010768 (January 05, 2006, Devlin, J.) ( 40 Conn. L. Rptr. 552, 553). In DeChristoforo, the Court granted the defendants' motion to strike two sub-paragraphs of the plaintiff's reasons for appeal that were legally insufficient to state a claim upon which relief could be granted. In paragraph seven of her reasons for appeal, the plaintiff alleged three reasons why the spousal allowance awarded by the probate court was erroneous: "a) The ruling fails to give effect to the testator's intention as expressed in her will and, therefore, appropriates the property of the beneficiary . . . b) The amount of spousal allowance awarded to the defendant . . . is not necessary for his support . . . and c) The amount and manner in which the petitioner was awarded spousal allowance was not reasonable." Id. The Court determined that, under statutory and case law, paragraphs a and c did not state a claim upon which relief could be granted. Id.
Practice Book 10-44 provides, in pertinent part: "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof."
Paragraph thirty-one of the plaintiff's reasons for appeal states: "Despite the fact that the Court of Probate ordered that it `wants this matter resolved by the Office of Protection and Advocacy and the Department of Developmental Services in as timely a manner as possible,' OPA and DDS have not resolved this matter." The language of the decree reveals that the "matter" refers to the OPA's investigation into the alleged physical abuse of Ms. Banks by the plaintiff. During the pendency of this appeal, the June 3, 2010 decree remains in force. DDS' argument that the Superior Court can provide no relief for DDS' alleged failure to comply with the Probate Court's order to resolve the matter is immaterial because the plaintiff has not asked this court to enforce the decree. To the contrary, the plaintiff has chosen to appeal the decree and she has asked this court to void it.
This case thus differs from DeChristoforo v. Botte, supra, Superior Court, Docket No. 054010768. In that case, the two sub-paragraphs of the plaintiff's reasons for appeal that were stricken were being used as support for a claim that an award of spousal allowance was erroneous. Here, paragraph thirty-one of the reasons for appeal is merely a statement of an alleged fact, and it does not attempt to set forth all of the essential allegations of a cause of action. Therefore, DDS' Motion to Strike paragraph thirty-one of the plaintiff's reasons for appeal must be denied.
CONCLUSION
DDS' Motion to Strike all claims against it on the ground of misjoinder must be denied because the defendant is an interested party in this appeal; its motion to strike paragraph d of the plaintiff's request for relief must be granted because the subject matter of the paragraph is beyond the scope of this appeal; finally, its motion to strike paragraph thirty-one of the plaintiff's reasons for appeal must be denied because paragraph thirty-one does not purport to set forth all of the essential allegations of a cause of action.
IT IS SO ORDERED this 28th day of January 2011.