Caltabiano v. L & L Real Estate Holdings II, LLC
128 Conn. App. 84
| Conn. App. Ct. | 2011Background
- Plaintiffs John Caltabiano and The Dohnna, LLC, filed suit in January 2007 seeking equitable relief and monetary damages.
- Amended complaint filed April 2007; in September 2007 the court dismissed counts one and two in their entirety; this dismissal was affirmed on appeal.
- In October–November 2007, defendants moved to revise the remaining counts; plaintiffs filed a revised amended complaint on November 20, 2007, focusing on counts three and four.
- Counts three and four alleged failure to disclose timely facts to Westbrook zoning authorities and a CUTPA violation.
- L&L and Cumberland Farms moved to strike counts three and four on January 4, 2008; BL Companies and Landino joined February 14, 2008; the court granted the motions on August 8, 2008.
- Plaintiffs filed a substitute revised amended complaint on August 20, 2008; motions for judgment of nonsuit and/or to strike counts three and four were renewed through March 20, 2009, and the court ultimately struck counts three and four and entered judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substitute pleading was a new pleading | Caltabiano supporters argue the substitute was new and cured defects. | Defendants contend the substitute was not materially different from the struck pleading. | Judgment upheld; substitute was not a new pleading |
| Whether failure to file a new pleading after a strike justified judgment of nonsuit | Plaintiffs argue the court erred in entering judgment for failure to file a new pleading. | Defendants rely on Practice Book §§ 10-44 and 17-31 to support judgment of nonsuit. | Court correctly rendered judgment of nonsuit for counts 3–4 |
| Whether the substitute revised amended complaint preserved any argument about sufficiency of counts 3–4 | Plaintiffs contend new allegations in the substitute could be material. | Defendants argue the substitute added no new facts and did not resuscitate the prior defects. | Waiver of challenge; substitute did not revive sufficiency challenges |
| Whether the plaintiffs preserved an appeal after the strike of counts 3–4 | Plaintiffs maintained the original claims could be revived on appeal. | Waiver and procedural rules barred relitigation after substitution. | Waiver and procedural rules foreclosed review of counts 3–4 |
Key Cases Cited
- Royce v. Westport, 183 Conn. 177 (Conn. 1981) (court may dispose of repetitive pleadings after a demurrer)
- Kovacs Construction Corp. v. Water Pollution & Control Authority, 120 Conn. App. 646 (Conn. App. 2010) (construction of pleadings is a question of law; plenary review)
- St. Denis v. de Toledo, 90 Conn. App. 690 (Conn. App. 2005) (amendment after strike constitutes waiver of error on appeal)
- Parsons v. United Technologies Corp., 243 Conn. 66 (Conn. 1997) (subsequent complaint cannot relitigate earlier stricken allegations)