Bross v. Hillside Acres, Inc.

• Decision Date: 03 January 2006
• Docket Number: No. 25728.,25728.
• Citation: 92 Conn.App. 773,887 A.2d 420
• Court: Connecticut Supreme Court
• Parties: Rhonda L. BROSS, Conservatrix (Estate of Ross A. Cox, Jr.) v. HILLSIDE ACRES, INC.

887 A.2d 420

92 Conn.App. 773

Rhonda L. BROSS, Conservatrix (Estate of Ross A. Cox, Jr.) v. HILLSIDE ACRES, INC.

No. 25728.

Appellate Court of Connecticut.

Argued September 23, 2005.

Decided January 3, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph M. Merly, with whom, on the brief, was John R. Williams, New Haven, for the appellant (plaintiff).

Richard A. Roberts, Cheshire, with whom, on the brief, was Thomas J. Lengyel, New York, NY, for the appellee (defendant).

SCHALLER, DiPENTIMA and DUPONT, Js.

SCHALLER, J.

The plaintiff, Rhonda L. Bross, acting in her capacity as conservatrix of the estate of Ross A. Cox, Jr., appeals from the judgment rendered in favor of the defendant, Hillside Acres, Inc., after the trial court granted the defendant's motion to strike her second amended complaint. On appeal, the plaintiff claims that the court improperly determined that the second amended complaint failed to state a claim on which relief could be granted. We agree and, accordingly, reverse the judgment of the trial court.

The following procedural history and relevant facts, taken from the plaintiff's pleadings, are necessary for our discussion.¹ The plaintiff commenced the action on August 19, 2003. In her first amended complaint, dated January 9, 2004, the plaintiff alleged that Cox had suffered a severe traumatic brain injury as a result of an automobile accident on April 29, 1997. In February, 1999, Cox and the defendant entered into an implied contract in which Cox would pay substantial fees to the defendant. In exchange, the defendant was obligated to provide Cox with a safe and supportive residential environment and to assist him in becoming more self-sufficient and better able to function in society. The plaintiff further alleged that the defendant breached that contract by using Cox as "cheap agricultural labor on its farm," and "entirely failed to assist him in becoming more self-sufficient and better able to function in society." As a result of those breaches, Cox suffered "a significant setback in his progress toward recovery, [and suffered] physical injury and economic loss."

On February 3, 2004, the defendant filed a motion to strike the plaintiff's first amended complaint for failure to state a claim on which relief could be granted. The defendant argued that the plaintiff's claim essentially was a tort cause of action disguised as a claim for breach of contract. On March 25, 2004, the court issued its memorandum of decision granting the defendant's motion. The court determined that despite the general use of contract language, "the specific factual allegations on which this claim is based sound in negligence." Specifically, the court stated that compensation for the type of injuries allegedly sustained by Cox generally was recoverable as tort rather than contract damages. "There are no claimed damages seeking recovery for fees paid under the alleged implied contract. Thus, the court agrees with the defendant that `the [first amended] complaint purports to state a cause of action under a theory of implied contract when it is actually a tort claim cloaked in contract garb.'"

On March 30, 2004, the plaintiff filed a second amended complaint. That pleading included the allegations set forth in the first amended complaint that had been stricken by the court, plus one modification: "As a result of the defendant's breach of its contract, [Cox] and the plaintiff have suffered the loss of their fees described [in the second amended complaint]." On June 3, 2004, the defendant filed a motion to strike the second amended complaint on the ground that because the allegations again sounded solely in negligence, its single cause of action was barred by the statute of limitations. The defendant also argued that the "limited alteration to the type of damages sought [was] insufficient to cure the remaining defects inherent in the complaint." The court granted the defendant's motion, citing Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 815 A.2d 1188 (2003), for the proposition that the second amended complaint alleged mere conclusions of law unsupported by facts. On July 14, 2004, the defendant filed a motion for judgment, which the court granted on August 5, 2004. This appeal followed. Additional facts will be set forth as necessary.

I

As a preliminary matter, we must consider whether the plaintiff waived her right to appeal. Specifically, if the plaintiff's second amended complaint was not materially different from the first amended complaint that had been stricken by the court, then she waived her right to appeal. We are persuaded that the second amended complaint was materially different from the first amended complaint and, therefore, she did not waive her right to appeal.

Our decision in P & L Properties, Inc. v. Schnip Development Corp., 35 Conn.App. 46, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994), is the appropriate starting point for our discussion. In that case, this court stated: "After a trial court has sustained a motion to strike a complaint or a portion of the complaint, the plaintiff has two options. He may amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal the sustaining of the [motion to strike].... The choices are mutually exclusive. The filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading.... When a [motion to strike] is sustained and the pleading to which it was directed is amended, that amendment acts to remove the original pleading and the [motion to strike] thereto from the case. The filing of the amended pleading is a withdrawal of the original pleading." (Internal quotation marks omitted.) Id., at 49, 643 A.2d 1302; see also Royce v. Westport, 183 Conn. 177, 178-79, 439 A.2d 298 (1981); Parker v. Ginsburg Development CT, LLC, 85 Conn.App. 777, 781, 859 A.2d 46 (2004); Practice Book § 10-44.

In Nestor v. Travelers Indemnity Co., 41 Conn.App. 625, 627 n. 3, 677 A.2d 475, cert. denied, 239 Conn. 903, 682 A.2d 1004 (1996), we stated that "[i]f the amended complaint merely restates the original cause of action that was stricken, the plaintiff may not appeal the granting of a subsequent motion to strike." See also Parker v. Ginsburg Development CT, LLC, supra, 85 Conn.App. at 781-82, 859 A.2d 46; Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996).

The question before us is whether the plaintiff's second amended complaint merely restated the cause of action found in the first amended complaint that was stricken by the court. If so, the plaintiff has waived her right to appeal. If, however, the plaintiff's second amended complaint is materially different, her appeal is proper.

Our Supreme Court has stated that "[t]he interpretation of pleadings is always a question of law for the court.... Our review of the trial court's interpretation of the pleadings therefore is plenary." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005); see also Zirinsky v. Zirinsky, 87 Conn.App. 257, 267, 865 A.2d 488 (interpretation of pleadings presents question of law subject to de novo review on appeal), cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). Furthermore, "[t]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Owen, 88 Conn.App. 806, 813, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005). We must compare the first amended complaint with the second amended complaint to determine whether the latter is materially different from the former.

In the first amended complaint, the plaintiff alleged that Cox and the defendant entered into an implied contract. The terms of that contract specifically required Cox to pay "substantial fees" to the defendant in exchange for the defendant's agreement to provide Cox with a "safe and supportive residential environment," and to "assist him in becoming more self-sufficient and better able to function in society." The plaintiff further claimed that both she and Cox had complied fully with their contractual obligation to pay the fees, but the defendant breached the contract by using him as "cheap agricultural labor" on its farm, "entirely fail[ing] to assist him in becoming more self-sufficient and better able to function in society," and allowing one of its employees to assault and to "beat" Cox. The plaintiff's final allegation was a claim for damages for the significant setback in Cox's recovery and for physical injury and economic loss. The claim for damages was the portion that the court concluded was problematic and cause for granting the defendant's motion to strike. Although the revised complaint appeared at first to set forth a claim for the breach of an implied contract, the damages requested were those associated with an action in tort law rather than contract law. Essentially, the court determined that the plaintiff had failed to allege the proper type of damages, a necessary element in a breach of contract claim. See Shah v. Cover-It, Inc., 86 Conn.App. 71, 74 n. 3, 859 A.2d 959 (2004). Having failed to allege all of the necessary elements of her cause of action, the court struck the plaintiff's revised complaint. See, e.g., Ross v. Forzani, 88 Conn.App. 365, 367, 869 A.2d 682 (2005).

In her second amended complaint, however, the plaintiff cured the defect with respect to damages. Specifically, after realleging the elements of an implied contract, Cox's performance and the defendant's subsequent breach, the plaintiff set forth the following: "As a result of the defendant's breach of its contract, [Cox] and ...