35 Conn. App. 46 | Conn. App. Ct. | 1994
The plaintiff appeals from the judgment that followed the trial court’s granting of the defendants’ motion to strike the fourth count of the plaintiff’s second amended complaint. Prior to the judgment that is the subject of this appeal, an earlier motion to strike had been directed at a revised amended complaint.
In August, 1991, the plaintiff filed a revised amended complaint that named four additional defendants, referred to as the limited partnership defendants.
On February 26, 1993, the plaintiff moved for judgment on the fourth count of the second amended complaint pursuant to Practice Book § 4002 (b). On April 20, 1993, the trial court granted the motion and rendered judgment on the fourth count in favor of the defendants.
In this case, the plaintiff chose the first option by filing its second amended complaint after the trial court sustained the motion to strike the fourth and fifth counts of the revised amended complaint.
When the allegations of an amended complaint appear to be the same in substance as those of an earlier complaint that was stricken, the defendant may challenge the amended complaint by filing a request to revise; Royce v. Westport, supra, 183 Conn. 180-81; or a second motion to strike. See Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 263-64, 259 A.2d 598 (1969). “The request to revise is a [request] for an order directing the opposing party to revise his pleading in the manner specified.” Royce v. Westport, supra, 180. Although the request to revise may not ordinarily be used to substantively challenge a pleading, it may be used to delete “ ‘otherwise improper allegations’ ” from a complaint. Id. The motion to strike, on the other hand, challenges the legal sufficiency of the pleading by testing whether the complaint states a cause of action on which relief can be granted. Amore v. Frankel, 228 Conn. 358, 372, 636 A.2d 786 (1994).
Although the pleadings generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken. See Royce v. Westport, supra, 183 Conn. 180; Good Humor Corp. v. Ricciuti, supra, 160 Conn. 135; Jensen v. Nationwide Mutual Ins. Co., supra, 158 Conn. 264. If the plaintiff here has in fact merely restated the original cause of action, the defendant would prevail on either pleading.
The judgment is affirmed.
In this opinion the other judges concurred.
Lee Parcel 1 Associates Limited Partnership, Lee Parcel 2 Associates Limited Partnership, Lee Parcel 6 Associates Limited Partnership, and Lee Parcel 6A Associates Limited Partnership are the additional defendants.
We need not discuss the allegations of the fifth count. See footnote 4 and accompanying text.
The term defendants refers to both Sehnip and the limited partnership defendants.
The fifth count of the revised amended complaint is not a subject of this appeal because the plaintiff did not replead it nor did the plaintiff obtain a judgment as to the fifth count after the trial court granted the defendants’ motion to strike. See Practice Book § 4002.
Practice Book § 4002 (b) provides in pertinent part: “When fewer than all of the counts of a complaint . . . have been stricken, the trial court may, upon motion pursuant to this subsection, render judgment upon such stricken counts if (1) such counts are directed against a party against whom no relief is sought in the remaining counts of such pleading . . . .” In this case, no relief is sought against the limited partnership defendants in the remaining counts of the second amended complaint. Although the
The plaintiff could have tested the legal sufficiency of its allegations to support a cause of action after the first motion to strike was granted by moving for judgment on the fourth and fifth counts and then appealing from the judgment rendered against it. See Practice Book § 4002 (b).
We note that our Supreme Court indicated in a footnote in People’s Bank v. Horesco, 205 Conn. 319, 321-22 n.5, 533 A.2d 850 (1987), that when the