No. HHD X04 CV-06-4034586 S
January 3, 2011
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#319)
The court heard oral argument on December 14, 2010 concerning defendant Eugene Singer's motion to strike count five of the plaintiff's third revised complaint (#296). The plaintiff filed an objection to the motion (#320). After considering the parties' arguments, the court issues this memorandum of decision. For the reasons discussed below, the motion is denied.
The procedural history of this matter, in which the return day was April 4, 2006, shows that the plaintiff has revised his complaint three times. The court's docket reflects that the plaintiff's first revised complaint (#233) was filed on October 30, 2008. The plaintiff's second revised complaint (#264) was filed on May 22, 2009. Singer filed his answer (#288), which was addressed to the first revised complaint on November 5, 2009. The plaintiff's third revised complaint (#296) was filed on January 5, 2010. On June 28, 2010, Singer filed his motion to strike count five of the third revised complaint.
At oral argument, plaintiff's counsel asserted that the filing of Singer's answer waived his right to file a motion to strike, since the fifth count, as alleged in the third revised complaint, was substantially the same as the fifth count of the first revised complaint, which Singer answered.
Count five is styled as a claim for conversion and for breach of fiduciary duty against Singer. In his motion, Singer asserts that the fifth count fails to state a claim upon which relief can be granted and improperly joins two causes of action in one count. In his memorandum of law, Singer argues that the fifth count is not legally sufficient since fraud is not pleaded with particularity, all the elements of conversion are not alleged, and the plaintiff fails to specify what actions amounted to breach of fiduciary duty.
In his objection, the plaintiff contends that Singer's presentation does not discuss why the causes of action cannot be raised together. The plaintiff also asserts that the allegations of conversion and breach of fiduciary duty are legally sufficient.
Practice Book § 10-61 concerns pleading after amendment and provides, "[w]hen any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading."
Thus, "[w]hile a party has the right to plead further in the event of an amended complaint, there is a ten-day limitation. See Practice Book § 10-61." Liss v. Milford Partners, Inc., Superior Court, Complex Litigation Docket at Hartford, Docket No. X07 CV 04 4025123 (September 29, 2008, Berger, J.) ( 46 Conn. L. Rptr. 439). "[W]here an answer to the original complaint has been filed and where an amendment does not alter the counts previously answered, courts have found that the defendant has waived his right to move to strike the answered counts." Id. See Ainsworth v. Lexington Partners, LLC, Superior Court, judicial district of New Britain, Docket No. CV 98 0489701 (June 29, 2000, Shortall, J.) (collecting cases).
Here, Singer did not file any further pleading within ten days of the filing of the third revised complaint. The allegations made against Singer in count five remain substantially the same as those which were alleged in count five of the first revised complaint. Only minor, non-substantive changes were made in the revision. For example, in the third revised complaint, some additional background information is added in paragraph 1, including dates, and that the plaintiff filed a "Report" to the Stonington Probate Court. Minor changes also were made to paragraph 2, such as identifying James Yaworski, Sr. and Rose Yaworski as owners of property. Similarly, in paragraph 7, James Yaworski, II (James II), for whom the plaintiff is acting as conservator, is now alleged to have suffered the "physical and mental" effects of encephalitis, instead of the previously alleged "various" effects. See first revised complaint, count five, ¶ 7. In paragraph 9 and 10 of count five in the third revised complaint, additional allegations are set forth as to James II's and Lee Yaworski's percentage ownerships of certain of the various business entities previously discussed in the first revised complaint.
Other changes were made to eliminate references to Denis and Mary Yaworski as defendants. See third revised complaint, ¶ 3 and ¶ 23 of Count Two, incorporated by reference in Count Five. Likewise, allegations concerning Attorney Milton L. Jacobsen and his law firm, which were set forth in paragraph 9A of count five of the first revised complaint, were omitted in the third revised complaint. The bulk of the allegations remain from count five of the first revised complaint and, substantively, there has been no change to the allegations made against Singer.
"Practice Book § 10-6 (formerly § 112), which dictates the order of pleadings, provides that a defendant's motion to strike the complaint must be filed prior to a defendant's answer. Thompson v. Buckler, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 0153798 (January 27, 1999, D'Andrea, J.). Since Singer did not file any further pleadings within ten days of the filing of the third revised complaint on January 5, 2010, the answer filed earlier on November 5, 2009 "becomes the applicable answer." Id. See Chapman v. Norfolk Dedham Mutual Fire Ins. Co., 39 Conn.App. 306, 331, 665 A.2d 112, cert. denied, 235 Conn. 925, 666 A.2d 1185 (1995) (by operation of Practice Book § 177, now § 10-61, prior general denial "deemed to apply" to subsequent answer).
When Singer filed his motion to strike on June 28, 2010 "it did not comply with the time prescribed by the Practice Book. The motion to strike was filed after the answer and in violation of Practice Book § 10-6 (formerly § 112). Therefore, the plaintiff's objection to the defendant's motion to strike[, raised at oral argument,] is sustained on procedural grounds." Thompson v. Buckler, supra, Superior Court, Docket No. 0153798. Singer waived his right to move to strike the answered count.
Under these circumstances, the court need not address Singer's contentions concerning separation of causes of action or the legal sufficiency of count five.
Based on the reasons stated above, defendant Singer's motion to strike count five of the third revised complaint is denied. It is so ordered.