SANDHYA DESMOND v. YALE-NEW HAVEN HOSPITAL, INC., ET AL.
(AC 39157)
Sheldon, Keller and Bright, Js.
Argued January 30—officially released April 17, 2018
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Syllabus
The plaintiff sought to recover damages from her former employer for, inter alia, statutory theft in connection with the defendants’ actions during proceedings before the Workers’ Compensation Commissioner concerning a work related injury sustained by the plaintiff. The trial court granted the defendant‘s motion to strike the plaintiff‘s amended complaint and determined that it lacked jurisdiction over her claim due to the exclusivity provision of the Workers’ Compensation Act (
- This court declined to review the plaintiff‘s claim that the trial court erred in determining that the counts alleged in her substitute complaint were barred by the exclusivity provision of the act, the plaintiff having failed to brief the claim adequately; because the plaintiff did not appeal from the trial court‘s determination, made when it struck her amended complaint, that the plaintiff‘s claims were barred by the exclusivity provision of the act, for the plaintiff to avoid waiving her right to appeal from that determination, she was first required to establish that the trial court improperly determined that her substitute complaint was not materially different from the stricken complaint and that she had failed to cure the deficiencies found by the trial court in striking the amended complaint, which she failed to do, as the plaintiff‘s brief to this court failed to address those findings of the trial court and was devoid of any specific discussion or legal analysis as to which allegations set forth in the forty-one additional pages filed as part of the substitute complaint cured the deficiencies that led the trial court to strike her amended complaint.
- The trial court having improperly considered the wrong complaint when it denied the plaintiff‘s request for leave to amend her substitute complaint, further proceedings on the plaintiff‘s request for leave to amend were required; it was apparent from the trial court‘s decision denying the plaintiff‘s motion to reargue that, when denying the request for leave to amend, the court considered the plaintiff‘s ten count substitute complaint and not the eleven count proposed amended complaint that accompanied her request for leave to amend, and, thus, the court failed to consider the additional count that purported to plead a cause of action for retaliatory discrimination pursuant to
§ 31-290a when ruling on that request.
Procedural History
Action to recover damages for, inter alia, statutory theft, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Nazzaro, J., granted the defendants’ motion to strike; thereafter, the court denied the plaintiff‘s request for leave to amend her substitute complaint; subsequently, the court denied the plaintiff‘s motion for reargument and reconsideration; thereafter, the court, Ecker, J., overruled the plaintiff‘s objections to the defendants’ request to revise her substitute complaint, granted the defendants’ motion for judgment, and rendered judgment of dismissal, from which the plaintiff appealed to this court. Reversed in part; further proceedings.
Eric M. Desmond, for the appellant (plaintiff).
Phyllis M. Pari, with whom was Angelica L. Mack, for the appellees (defendants).
Opinion
SHELDON, J.
This court set forth the following undisputed factual and procedural history in an earlier appeal brought by this plaintiff, Desmond v. Yale-New Haven Hospital, Inc., 138 Conn. App. 93, 50 A.3d 910 (Desmond I), cert. denied, 307 Conn. 942, 58 A.3d 258 (2012). “At all times relevant to this appeal, the plaintiff was an employee of the hospital. On December 30, 2004, she was injured in the course of her employment. According to the plaintiff, she suffered a spill-related fall while at work and subsequently was diagnosed with bilateral, acute post-traumatic carpal tunnel injuries. Her physicians have advised her that, absent medical treatment, she permanently will be unable to use her hands.
“Subsequently, she filed a workers’ compensation claim with regard to her injury, and the defendants accepted the claim. On March 6, 2008, she filed a federal action in United States District Court for the District of Connecticut, in which she alleged various claims under state law and the Americans with Disabilities Act,
“On May 20, 2010, the plaintiff filed in the Superior Court the operative complaint in th[is] . . . case. The complaint contained ten counts, alleging against each of the defendants workers’ compensation fraud, statutory negligence, breach of contract, unfair and deceptive acts and practices in violation of CUTPA and delay in the delivery of benefits under the act in violation of the plaintiff‘s state constitutional right to due process. The complaint alleged that the defendants had made various filings with the [W]orkers’ [C]ompensation [C]ommission (commission) in a bad faith and fraudulent attempt to delay treatment. The complaint alleged that these bad faith attempts to delay treatment caused the plaintiff‘s condition to worsen, as she did not receive necessary treatment.
“On June 7, 2010, the defendants filed a motion to dismiss, alleging that the exclusivity provision of the act barred the action and that the plaintiff had failed to exhaust her administrative remedies under the act. The court granted the defendants’ motion to dismiss on December 16, 2010. Relying on our Supreme Court‘s decision in DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2005), the court held that the plaintiff‘s claims did not allege conduct that was sufficiently egregious to remove the claims from the exclusive jurisdiction of the commission. The plaintiff filed . . . [an] appeal on January 20, 2011.” Desmond I, supra, 138 Conn. App. 95–96.
On appeal in Desmond I, “the plaintiff claim[ed] that the court improperly held that it lacked jurisdiction over her claims because the exclusivity provision of the act barred her from bringing an action in the Superior Court. The plaintiff argue[d] that the court erroneously determined that its analysis was controlled by DeOliveira . . . and, instead, maintain[ed] that
This court rejected both of the plaintiff‘s arguments, holding that it was “clear that the plaintiff‘s claimed injuries allegedly caused by the defendants’ bad faith delays in medical treatment, arose out of and in the course of the workers’ compensation claims process” and thus that those injuries “fall within the jurisdiction of the commission.” Id., 102. This court further held that even if the plaintiff‘s allegations were afforded “their most damaging interpretation, the defendants’ conduct was not on the level of egregious behavior that . . . could provide an exception to the exclusivity provision.” Id., 103. Accordingly, this court affirmed the judgment of the trial court dismissing the plaintiff‘s action in Desmond I.
On October 3, 2013, the plaintiff filed her amended complaint in the present action, wherein she again set forth ten counts against the defendants, claiming statutory theft, common-law fraud, violation of CUTPA, breach of contract and statutory negligence. The defendants moved to strike all of the plaintiff‘s claims on the ground, inter alia, that they are barred by the exclusivity provision of the act, and thus that the trial court had no jurisdiction over them. The plaintiff filed an objection, arguing, inter alia, that her claims were not barred by the exclusivity of the act.2
On August 25, 2014, the court, Nazzaro, J., heard oral argument on the defendants’ motion and the plaintiff‘s objection thereto. By way of memorandum of decision filed on November 26, 2014, the court granted the defendants’ motion to strike the plaintiff‘s entire complaint on the ground that all of the plaintiff‘s claims fell within the exclusive jurisdiction of the commission. The court reasoned that the alleged misconduct of the defendants, which the court found to be “identical to that alleged in Desmond [I] . . . but for the addition of some conduct by the defendants postdating the prior suit,” was not so egregious to invoke the exception to exclusivity.
The plaintiff did not appeal from the trial court‘s ruling striking her complaint.
On February 5, 2015, the plaintiff filed a request for leave to amend her substitute complaint, pursuant to Practice Book § 10-60, to incorporate a claim for retaliatory discrimination pursuant to
On May 4, 2015, the plaintiff filed a motion for reargument and reconsideration.3 The court heard reargument on June 22, 2015, and issued a memorandum of decision on October 7, 2015, denying reconsideration of its denial of the plaintiff‘s request for leave to amend.
On May 7, 2015, the defendants filed a request to revise the plaintiff‘s substitute complaint, which she had filed on December 11, 2014. The defendants sought to have the plaintiff‘s entire substitute complaint deleted because the allegations of the substitute complaint were substantially similar to those contained in the plaintiff‘s previously stricken complaint and the allegations added to the substitute complaint failed to cure the deficiencies of the earlier complaint.
On June 8, 2015, the plaintiff filed two separate objec- tions to the defendants’ request to revise. In one of her objections, she argued that the court “simply lacked the authority” to strike her
On March 4, 2016, the court, Ecker, J., issued an order overruling the plaintiff‘s objections to the defendants’ request to revise and rendered judgment dismissing her complaint. In so doing, the court held, inter alia: “[I]t is the court‘s opinion that the substitute complaint is not, in substance, materially different from the . . . stricken . . . complaint. In other words, the new allegations in the substitute complaint do not cure the legal deficiencies that caused Judge Nazzaro to strike the [amended] complaint. The substitute complaint contains many more pages of allegations, but those allegations, in this court‘s view, do not change the nature or character of the underlying claims in a manner that would alter the outcome of Judge Nazzaro‘s memorandum of decision striking the [amended] complaint.” The court also explained that it was disinclined to revisit Judge Nazzaro‘s decision striking the plaintiff‘s complaint, but that, even if it did so, it would agree that the plaintiff‘s allegations could not overcome the exclusivity of the act. The plaintiff subsequently sought reargument, which the court denied. This appeal followed.
On appeal, the plaintiff claims that the trial court erred in determining that her claims were barred by the exclusivity of the act. She also claims that the trial court erred in denying her request for leave to amend her complaint to add a retaliation claim pursuant to
I
The plaintiff first claims that the court erred in determining that her claims were barred by the exclusivity of the act. “[A]fter a court has granted a motion to strike, [a party] may either amend his pleading [pursuant to Practice Book § 10-44] or, on the rendering of judgment, file an appeal. . . . The choices are mutually exclusive [as the] filing of an amended pleading operates as a waiver of the right to claim that there was error in the [granting] of the [motion to strike] the original pleading. . . . Stated another way: When an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and
“If the plaintiff elects to replead following the granting of a motion to strike, the defendant may take advantage of this waiver rule by challenging the amended complaint as not materially different than the [stricken] . . . pleading that the court had determined to be legally insufficient. That is, the issue [on appeal becomes] whether the court properly determined that the [plaintiff] had failed to remedy the pleading deficiencies that gave rise to the granting of the [motion] to strike or, in the alternative, set forth an entirely new cause of action. It is proper for a court to dispose of the substance of a complaint merely repetitive of one to which a demurrer had earlier been sustained. . . . Furthermore, if the allegations in a complaint filed subsequent to one that has been stricken are not materially different than those in the earlier, stricken complaint, the party bringing the subsequent complaint cannot be heard to appeal from the action of the trial court striking the subsequent complaint. . . . The law in this area requires the court to compare the two complaints to determine whether the amended complaint advanced the pleadings by remedying the defects identified by the trial court in granting the earlier motion to strike.” (Citations omitted; internal quotation marks omitted.) Lund v. Milford Hospital, Inc., 326 Conn. 846, 850–52, 168 A.3d 479 (2017). “Factual revisions or additions are necessary; mere rewording that basically restate[s] the prior allegations is insufficient to render a complaint new following the granting of a previous motion to strike.” (Internal quotation marks omitted.) Id., 852–53. “[A]ppellate review of this comparative process is plenary because it considers the trial court‘s interpretation of the pleadings.” Id., 851 n.5.
The plaintiff argues that the trial court erred in determining that her claims were barred by the exclusivity of the workers’ compensation act because claims brought pursuant to
The plaintiff‘s brief to this court fails to address the trial court‘s determination that her substitute complaint was not materially different from her previously stricken amended complaint, and thus that the allegations set forth in the substitute complaint did not cure the legal deficiencies that led to the previous striking of her amended complaint. In her reply brief, she
“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Citations omitted; internal quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016). “Writing a compelling legal argument is a painstaking, time-consuming task. Good legal analysis is premised on knowing the controlling rules of law. An effective appellate advocate must apply the rules of law to the facts at hand by applying or distinguishing existing legal precedent. . . . To write a good brief and to comply with the rules of practice, counsel must state the rules of law, [and] provide citations to legal authority that support the claims made . . . .” (Internal quotation marks omitted.) Id., 729.
Because the plaintiff failed to argue in her initial brief to this court—and only did so cursorily in her reply brief—that the trial court erred in concluding that she failed, in her substitute complaint, to cure the deficiencies found by the court in her previously stricken amended complaint, we conclude that the plaintiff‘s claim is inadequately briefed, and thus we decline to review that claim.
II
The plaintiff also claims that the trial court erred in denying her request for leave to amend her substitute complaint, pursuant to Practice Book § 10-60, in order to add a claim for retaliatory discrimination under
“Whether to allow a party to amend the pleadings under Practice Book § 10-60 (a) rests within the discretion of the trial court. . . . Factors to be considered
The plaintiff filed a request for leave to amend her substitute complaint on February 5, 2015, to which the defendants filed an objection. The trial court, Nazzaro, J., denied the plaintiff‘s request and sustained the defendants’ objection thereto. In so ruling, the court stated: “The amendment is improper. See court‘s previous ruling on [the defendants‘] motion to strike.” The plaintiff thereafter filed a motion to reargue and for reconsideration, which the court also denied. In the latter ruling, the trial court explained its earlier ruling as follows: “The [proposed] amended complaint contains the same ten counts [as the substitute complaint]. The [proposed] amended complaint also contains identical allegations concerning the plaintiff‘s retaliation complaint under
On appeal, the plaintiff claims, inter alia, that the trial court erred in denying her request for leave to amend because it considered the wrong proposed amended complaint in so ruling. We agree. The plaintiff‘s February 5, 2015, proposed amended complaint contained eleven counts, not ten counts, as recited by the trial court. The additional count, which was added as count one of the proposed amended complaint, purported5 to plead a cause of action for retaliatory discrimination pursuant to
The judgment is reversed only as to the plaintiff‘s request for leave to amend her complaint to add a
In this opinion the other judges concurred.