Melfi v. Danbury

• Decision Date: 02 July 2002
• Docket Number: (AC 21134)
• Citation: 800 A.2d 582,70 Conn. App. 679
• Court: Connecticut Court of Appeals
• Parties: NICOLAS G. MELFI ET AL. v. CITY OF DANBURY ET AL.

70 Conn. App. 679

800 A.2d 582

NICOLAS G. MELFI ET AL. v. CITY OF DANBURY ET AL.

(AC 21134)

Appellate Court of Connecticut.

Argued April 1, 2002.

Officially released July 2, 2002.

Foti, Bishop and Shea, JS.

Nancy Burton, for the appellants (plaintiffs).

Peter N. Buzaid, assistant corporation counsel, for the appellee (named defendant).

Dominick J. Rutigliano, with whom, on the brief, was Gwen E. Adamson, for the appellees (defendant Robert Lupi et al.).

Opinion

FOTI, J.

The plaintiffs, Nicolas G. Melfi, Donna Melfi, Joseph Kozak and Dian Kozak, appeal from the judgment of the trial court rendered in favor of the defendant city of Danbury (city). On appeal, the plaintiffs claim that the court improperly (1) ordered the first four counts of their complaint stricken, (2) dismissed count five and (3) failed to award damages after a hearing in damages. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. "In July, 1991, the defendants, Robert Lupi and Phyllis Lupi, purchased two adjoining parcels of land; one parcel was located on Old Ball Pond Road in New Fairfield, the second on Old Ball Pond Road in Danbury. The Lupis built a house and began living there in early 1992.

"Soon after moving into their new home, the Lupis were concerned about traffic on the road. The city of Danbury, in response to these concerns, authorized the closing of the road to through traffic. A gate was erected across Old Ball Pond Road by Robert Lupi. The gate had posts at either end that were cemented into the ground and was secured by a padlock that required a key. It was effective in blocking all vehicular traffic. The Lupis refused to furnish the plaintiffs with a key to the padlock. The gate was removed after seventeen days.

"On October 26, 1992, the plaintiffs brought this action against the Lupis and the city of Danbury seeking an injunction against future obstruction of Old Ball Pond Road by the Lupis or others, as well as damages and other relief."¹Melfi v. Danbury, 38 Conn. App. 466, 467-68, 661 A.2d 1046 (1995). Thereafter, the plaintiffs filed a revised complaint on January 20, 1993. The city filed a motion to strike, which the court granted, resulting in the striking of all three counts of the complaint. On May 4, 1993, the plaintiffs filed a "substitute revised complaint" (original complaint) and, again, the court granted a motion to strike all three counts of the complaint. Finally, on September 21, 1993, the plaintiffs filed a five count "second substitute revised complaint" (amended complaint). In response, the city filed a request to revise that complaint on the ground that the first four counts were substantially similar to those stricken twice before. The plaintiffs objected to the city's request to revise, which the court overruled, finding that the "additions to [the September 21, 1993, amended] complaint [did] not raise any allegations materially different from those described in the previous complaint," and ordered the first four counts of the amended complaint deleted. As a result, count five was the only remaining count in the amended complaint.

I

The plaintiffs first claim that the court improperly struck the first four counts of their amended complaint. The plaintiffs cannot prevail on such a claim because it is wholly foreclosed under our Supreme Court's holdings in Royce v. Westport, 183 Conn. 177, 439 A.2d 298 (1981), and Good Humor Corp. v. Ricciuti, 160 Conn. 133, 273 A.2d 886 (1970).

In Royce, our Supreme Court held that "[u]pon the sustaining of a demurrer the losing party may take one of two courses of action. 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 demurrer.... 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 demurrer to the original pleading.... When a demurrer is sustained and the pleading to which it was directed is amended, that amendment acts to remove the original pleading and the demurrer thereto from the case. The filing of the amended pleading is a withdrawal of the original pleading.... [By] withdrawing one complaint and replacing it by another, [the plaintiffs] escaped an adverse judgment, and also abandoned any claim to a favorable judgment on the complaint so withdrawn.... It is thus clear that a plaintiff cannot file an amendment after the sustaining of a demurrer and, at the same time, appeal from a decision sustaining that demurrer.... The rule is a sound one, as it serves to prevent the prolongation of litigation." (Citations omitted; internal quotation marks omitted.) Royce v. Westport, supra, 183 Conn. 178-79; Good Humor Corp. v. Ricciuti, supra, 160 Conn. 135-36.

In the present case, the court struck all three counts of the plaintiffs' original complaint. Thereafter, the plaintiffs filed an amended complaint, which operated to waive their right to claim that the court improperly struck the three counts of the original complaint. In response to the amended complaint, however, the city filed a request to revise, formerly known as a motion to expunge. See Practice Book 10-35. The court granted the city's request to revise and deleted the first four counts of the plaintiffs' amended complaint because they were not materially different from the three counts stricken from the original complaint.

We note that "[w]hen 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 ... or a second motion to strike.... The request to revise is a [request] for an order directing the opposing party to revise his pleading in the manner specified.... 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.... 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....

"Although [a motion to strike and a request to revise] generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken.... If the plaintiff here has in fact merely restated the original cause of action, the defendant would prevail on either pleading." (Citations omitted; internal quotation marks omitted.) Doe v. Marselle, 38 Conn. App. 360, 362-63, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996).

We consider, therefore, only whether the court properly granted the city's request to revise the plaintiffs' amended complaint by interpreting the pleadings in the underlying action and comparing the original complaint with the amended complaint; see Davenport v. Quinn, 53 Conn. App. 282, 286, 730 A.2d 1184 (1999); "which presents a question of law and is subject to de novo review on appeal." Id. In addition, "[w]hen reviewing the facts alleged in a complaint, we consider them in the light most favorable to the plaintiff." Id., 288. "If the amended complaint stated a new cause of action, the [request to revise] should have been denied. If, however, the amended complaint merely restated the original cause of action, without curing the defect, the [request to revise] was properly granted." Good Humor Corp. v. Ricciuti, supra, 160 Conn. 137.

Of the thirty-two paragraphs in the first count of the amended complaint, twenty-eight are precisely the same as in the original complaint. Paragraphs nine, ten, eleven and thirty-two, which are new, do not state a new cause of action or cure the defect. Paragraphs nine and ten allege that the city "induced" the Lupis, as its "authorized agent," to erect a gate. Paragraph eleven alleges that "but for" such inducement, the gate would not have been erected. Paragraph thirty-two alleges that the plaintiffs were "harmed" by such conduct. Paragraphs nine, ten, eleven and thirty-two fail to allege facts sufficient to cure the defect as found by the court when it granted the city's motion to strike count one of the original complaint. The court aptly noted, and we agree, that the additional paragraphs in the amended complaint add nothing more than mere conclusory statements² to count one and do "not differ in substance from the prior complaint."

Count two is virtually the same in the amended complaint as it was in the original complaint. The only addition is an allegation added to paragraph thirty-eight that the city "erected the gate through its agent the Lupis...." Count two, therefore, amounts to nothing more than a conclusory statement devoid of the factual allegations necessary to cure the defect of the original pleading.

Count three of the amended complaint alleges statutory nuisance. This pleading, although technically asserting a different cause of action, is different from the original complaint in title only. Count three incorporates all of the allegations of count two of the original complaint. In so doing, it fails to allege any new facts that would differentiate it from count two of the original complaint. Count three of the amended complaint is merely a restatement of the allegations set forth in count two of the original complaint, which were stricken.

Count four of the amended complaint is virtually identical to count three of the original complaint with the exception of one additional allegation in paragraph forty-seven, which provides that "[t]he City of Danbury flagrantly exposed the Plaintiffs to peril of life and limb with no proper reason for doing so." Absent new factual allegations, count four of the amended complaint simply restates the allegations previously stricken in count three of the...