Sempey v. Stamford Hosp.

194 Conn.App. 505

221 A.3d 839

Merinda J. SEMPEY

v.STAMFORD HOSPITAL

AC 42215

Appellate Court of Connecticut.

Argued September 11, 2019

Officially released November 26, 2019

Laurence V. Parnoff, Stratford, for the appellant (plaintiff).

Justin E. Theriault, with whom, on the brief, was Beverly W. Garofalo, Hartford, for the appellee (defendant).

Keller, Bright and Bear, Js.

BRIGHT, J.

The plaintiff, Merinda J. Sempey, a former employee of the defendant, Stamford Hospital, appeals from the judgment of the trial court, rendered following the court's decision striking all four counts of the plaintiff's operative complaint. On appeal, the plaintiff claims that the court committed error because she sufficiently had pleaded causes of action for wrongful discharge, defamation, negligent infliction of emotional distress, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

We begin with the procedural history of this case. The plaintiff commenced this action against the defendant in September, 2014, sounding in three counts: (1) wrongful discharge in violation of an implied contract, (2) negligent infliction of emotional distress, and (3) a violation of CUTPA. On November 26, 2014, the defendant filed a motion to strike each count of the complaint. As to count one, the defendant argued that a cause of action for wrongful discharge could not be maintained because the plaintiff had been an at will employee. As to count two, the defendant alleged that the plaintiff's complaint failed to set forth any conduct that rose to the level required to maintain a cause of action for negligent infliction of emotional distress. As to count three, the defendant alleged that CUTPA does not apply in the context of an at will employment relationship. The court granted the motion to strike on August 6, 2015.

On August 20, 2015, the plaintiff filed a substitute complaint, recasting the first count of her original complaint as one sounding in racial discrimination in her discharge from employment in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq. Counts two and three substantively were similar to the original complaint. On September 10, 2015, the defendant filed a motion to strike each count of the substitute complaint. As to count one, the defendant argued that the plaintiff had failed to assert her claim for racial discrimination within the ninety day limitations period set forth in General Statutes § 46a-101 (e).¹ As to the second and third counts, the defendant alleged that the plaintiff had made no substantive changes from the original complaint, which the court already had stricken as insufficient. The defendant also filed a motion to dismiss count one of the plaintiff's complaint because it was not filed within the ninety day limitations period set forth in § 46a-101 (e).

By agreement of the parties, the defendant withdrew its motions to strike and to dismiss, and, on September 18, 2015, the plaintiff filed an amended substitute complaint; she amended only the allegations in the second and third counts. On September 21, 2015, the defendant filed a motion to strike each count of the plaintiff's amended substitute complaint and a motion to dismiss the first count of the complaint for the same reasons set forth in the previous motions. On January 6, 2016, the court granted the defendant's motion to strike, and it rendered a judgment of dismissal as to the entire complaint .² The plaintiff appealed from that judgment. This court affirmed the dismissal, on timeliness grounds, of count one of the plaintiff's amended substitute complaint, but reversed the judgment of dismissal as to counts two and three because the defendant had not moved to dismiss those counts and sought only to strike them. See Sempey v. Stamford Hospital , 180 Conn. App. 605, 624, 184 A.3d 761 (2018). This court held: "[T]he trial court properly dismissed count one of the amended substitute complaint as untimely. The court, however, in the absence of a motion to dismiss, lacked the authority to dismiss the second and third counts of the amended substitute complaint without affording the plaintiff the opportunity either to defend herself against a motion to dismiss those counts or to replead the stricken counts ." (Emphasis added.) Id.

On remand, the plaintiff, on April 6, 2018, filed another substitute complaint setting forth four counts against the defendant: (1) wrongful discharge in breach of an implied employment contract, (2) defamation, (3) negligent infliction of emotional distress, and (4) a violation of CUTPA.³

On May 3, 2018, the defendant filed a motion to strike each count of the complaint, with prejudice , and a supporting memorandum. As to count one, the defendant alleged that it was substantially similar to count one of the original complaint, which already had been stricken long ago, that the plaintiff had been an at will employee, and that it failed to set forth a cognizable claim for wrongful discharge. As to count two, the defendant alleged that any statements relied on by the plaintiff were protected by absolute privilege because they occurred in connection with unemployment proceedings before the Employment Security Division of the Department of Labor, which are quasijudicial proceedings. As to counts three and four, the defendant alleged that the court previously had stricken these causes of action on two occasions, and the plaintiff's repleaded allegations were not materially different from those previously stricken for insufficiency. It also alleged that counts three and four should be stricken on their merits. The defendant further asked the court to strike the complaint in its entirety with prejudice due to the plaintiff's repeated failure to plead viable causes of action. The defendant also requested that the court enter sanctions against the plaintiff by awarding it attorney's fees incurred in filing yet another motion to strike. On July 2, 2018, the court granted the motion, striking all four counts of the plaintiff's amended substitute complaint. The court did not award the defendant any attorney's fees.

On July 13, 2018, the plaintiff filed another substitute complaint incorporating counts one, two, and four from the April 6, 2018 complaint, specifically stating that she was doing so in order to preserve her right to appeal, and repleading count three, which alleged negligent infliction of emotional distress (operative complaint). In response, the defendant filed a motion to strike the operative complaint, again, with prejudice . The court granted the defendant's motion on September 10, 2018. On September 26, 2018, the defendant filed a motion for judgment, which the court granted on October 9, 2018. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that the court improperly struck each count of her operative complaint. We disagree.

"The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc. , 277 Conn. 113, 117–18, 889 A.2d 810 (2006).

"[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 sustaining 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 although it remains in the file, it cannot serve as the basis for any future judgment, and previous rulings on the original pleading cannot be made the subject of appeal." (Internal quotation marks omitted.) Lund v. Milford Hospital, Inc. , 326 Conn. 846, 850, 168 A.3d 479 (2017).

"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 plaintiffs had failed to remedy the pleading deficiencies that gave rise to the granting of the motions 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."⁴ (Citation omitted; internal quotation marks omitted.) Id., at 850–51, 168 A.3d 479.

Having set forth our standard of review and the general principles of law concerning a motion to strike, we next address each count of the plaintiff's complaint. As to the first count of her complaint, which alleges wrongful discharge in breach of an implied employment contract, the plaintiff argues that the defendant's...