Speer v. U.S. Bank Trust, N.A.

216 Conn.App. 506

285 A.3d 833

Sheri SPEER

v.U.S. BANK TRUST, N.A., et al.

AC 44902

Appellate Court of Connecticut.

Argued October 5, 2022

Officially Released November 15, 2022

Sheri Speer, self-represented, the appellant (plaintiff).

Thomas N. Abbott, pro hac vice, with whom were John J. Radshaw III, and Sean P. Clark, for the appellee (named defendant).

Alvord, Moll and Harper, Js.

MOLL, J.

The self-represented plaintiff, Sheri Speer, appeals¹ from the judgment of the trial court rendered in favor of the defendant U.S. Bank Trust, N.A. (U.S. Bank).² The plaintiff claims on appeal that the trial court (1) erred in granting U.S. Bank's motion to strike dated February 26, 2021, because the motion to strike (a) "did not comply with Practice Book § 10-41"³ and (b) was not directed to the operative complaint and (2) erred in granting U.S. Bank's motion for judgment dated September 21, 2021, because it was filed while an automatic appellate stay was in effect. For the reasons that follow, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In February, 2020, the plaintiff commenced the present action by way of a complaint dated February 3, 2020, containing allegations stemming from the recording of a certificate of foreclosure on the Norwich land records relating to certain real property of which the plaintiff was the record owner. The plaintiff's complaint asserted, as to U.S. Bank, four counts: (1) slander of title (count one); (2) declaratory judgment (count two); (3) violation of an automatic bankruptcy stay (count three); and (4) violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count four). On March 11, 2020, the defendant JPMorgan Chase Bank, N.A., filed a "notice of filing notice of removal" indicating the removal of the case to the United States District Court for the District of Connecticut pursuant to 28 U.S.C. § 1446 (d). On November 3, 2020, the federal District Court dismissed count three of the complaint. On December 10, 2020, the plaintiff filed in the Superior Court a request to amend the complaint, appending a proposed amended complaint, which reflected amendments (1) removing JPMorgan Chase Bank, N.A., as a defendant and (2) omitting count three of the original complaint.⁴ On December 15, 2020, the case was remanded from the federal District Court to the Superior Court.

On February 26, 2021, U.S. Bank filed a motion to strike with an accompanying memorandum of law directed to counts one, two, and four of the plaintiff's original complaint dated February 3, 2020. U.S. Bank argued that those counts should be stricken on the basis that the claims were time barred and/or because the plaintiff failed to allege valid causes of action. On March 4, 2021, the plaintiff filed a memorandum of law in opposition and, on March 10, 2021, U.S. Bank filed its reply memorandum. On August 5, 2021, the court granted U.S. Bank's motion to strike, concluding that count one was insufficiently pleaded and that counts one, two, and four were time barred. On August 11, 2021, the plaintiff filed a revised complaint, repleading her claim for slander of title as count one and her claim for violations of CUTPA as count two (revised complaint).

Shortly thereafter, on August 18, 2021, the plaintiff filed an original appeal from the court's August 5, 2021 decision granting, inter alia, U.S. Bank's motion to strike. On September 20, 2021, this court ordered the parties to file memoranda addressing whether the portion of the original appeal challenging the trial court's granting of U.S. Bank's motion to strike should be dismissed for lack of a final judgment because judgment had not been rendered in favor of U.S. Bank on the stricken complaint. On September 21, 2021, U.S. Bank filed a motion for judgment pursuant to Practice Book § 10-44,⁵ contending that the plaintiff (1) failed to allege any materially different facts in support of her repleaded claims and (2) did not replead her claims for declaratory judgment and violation of the automatic bankruptcy stay within the time permitted by § 10-44. On October 6, 2021, while the motion for judgment was still pending in the trial court, this court granted its own motion to dismiss the plaintiff's original appeal with respect to U.S. Bank.⁶

On November 1, 2021, the trial court granted U.S. Bank's motion for judgment, stating that the plaintiff's revised complaint "does not include any new facts that distinguish her repleaded claims for slander of title and violation[s] of [CUTPA] from the stricken ones. Additionally, the plaintiff has waived the previously [pleaded] claims for declaratory judgment and violation of the automatic bankruptcy stay by not repleading them." This amended appeal followed.

The plaintiff principally claims that the trial court erred in granting U.S. Bank's motion to strike because the motion "did not comply with Practice Book § 10-41"⁷ and/or was not directed to the operative complaint. This claim fails.

We begin by setting forth the applicable standard of review and governing principles of law. "Our review of the court's ruling on the defendant[’s] motion to strike is plenary." St. Denis v. de Toledo , 90 Conn. App. 690, 694, 879 A.2d 503, cert. denied, 276 Conn. 907, 884 A.2d 1028 (2005). "In ruling on a motion to strike, we take the facts alleged in the complaint as true." Id., at 691, 879 A.2d 503. "After a court has granted a motion to strike, the plaintiff 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] [t]he 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. ... If the allegations in [the plaintiff's] substitute complaint are not materially different from those in his original complaint ... the waiver rule applies, and the plaintiff cannot now challenge the merits of the court's ruling striking the amended complaint." (Citations omitted; internal quotation marks omitted.) Id., at 693–94, 879 A.2d 503 ; see also Lund v. Milford Hospital, Inc. , 326 Conn. 846, 851, 168 A.3d 479 (2017) ("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" (internal quotation marks omitted)); Parker v. Ginsburg Development CT, LLC , 85 Conn. App. 777, 782, 859 A.2d 46 (2004) (plaintiff bound to court's judgment striking amended complaint because amended complaint was not materially different).

"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." (Internal quotation marks omitted.) Lund v. Milford Hospital, Inc. , supra, 326 Conn. at 850, 168 A.3d 479. "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. ... In determining whether the amended pleading is materially different, we read it in the light most favorable to the plaintiff." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., at 851, 168 A.3d 479. Our Supreme Court has explained that "[c]hanges in the amended pleading are material if they reflect a good faith effort to file a complaint that states a cause of action in a manner responsive to the defects identified by the trial court in its grant of...