Opinion
No. HHB CV 07 5003021
June 26, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this case, the plaintiff has filed a motion to strike the defendants' request to revise. The case arises from an alleged breach of contract in the purchase of property.
BRIEF HISTORY
This action was commenced by way of a summons and four-count complaint dated November 27, 2006. Thereafter, on January 2, 2007, the plaintiff filed a substitute complaint adding a fifth count. On February 13, 2007, the plaintiff filed a motion for default as the defendants failed to file a responsive pleading. On February 14, 2007, the defendants filed an answer addressing only the first four counts of the substitute complaint. On February 27, 2007, the defendant filed a request to revise count five of the substitute complaint. In response, on March 27, 2007, the plaintiff filed a motion to strike and an objection to the defendants' request to revise. The defendants filed their memorandum in opposition on March 29, 2007.
The court denied the motion for default on February 16, 2007. The plaintiff contends the motion should have been granted by the court, pursuant to Practice Book § 17-32, on the day it was filed, February 13, 2007, as it preceded the filing of the defendants' answer on February 14, 2007.
ARGUMENT
In her memorandum of law in support of the motion to strike, the plaintiff argues that by answering the plaintiff's substitute complaint, the defendants waived any right to file a request to revise the complaint. The defendants counter that, as they did not file an answer to count five of the substitute complaint, they have not waived their right to address the pleadings in the fifth count. The defendants add that they are not aware of any rule that requires that each count of a complaint be answered at the same time. Although both parties cite to Practice Book §§ 10-6 and 10-7, neither cites to any case law.
Practice Book § 10-19 provides: "Every material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless such party avers that he or she has not any knowledge or information thereof sufficient to form a belief." For example, if an answer denied one count, but was silent as to another, the court could deem the unanswered count as admitted. See Federal Deposit Ins. Co. v. Rouleau, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 94 0046611 (July 6, 1999, Curran, J.).
In their answer, the defendants responded to the first four counts of the complaint, but did not respond to the fifth count. Additionally, the defendants did not file a request to revise the fifth count until almost two weeks after filing their answer. Because the defendants were silent as to count five, the fifth count is deemed admitted.
Additionally, Practice Book § 10-6 provides in relevant part: "The order of pleading shall be as follows: (1) The plaintiff's complaint. (2) The defendant's motion to dismiss the complaint. (3) The defendant's request to revise the complaint. (4) The defendant's motion to strike the complaint. (5) The defendant's answer (including any special defenses) to the complaint." Additionally, Practice Book § 10-7 provides: "In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." As the rules of practice state, the filing of any subsequent pleading waives the right to file an earlier pleading. See Fisher v. Yale University, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 04 4010140 (November 20, 2006, Munro, J.). Thus, "filing an answer waives a party's right to file a motion addressed to the pleadings." Gage v. Drazen, Superior Court, judicial district of New Haven, Docket No. CV 03 0482741 (August 26, 2004, Arnold, J.) [37 Conn. L. Rptr. 732].
There is an exception to the court's adherence to the order of pleadings. The court has determined that "[a]fter filing an answer, it [is] improper for the defendant to file any motion addressed to the complaint without seeking the permission of the court." Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 451, 352 A.2d 291 (1974). In the instant case, however, the defendants failed to seek the permission of the court prior to filing the request to revise. Because of this, they are now precluded from filing the request to revise.
While this court may have discretion to overlook the order of pleadings, "[t]he design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . [r]ules are a means to justice, and not an end in themselves." Millbrook Owners Ass'n. v. Hamilton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2001). In Whitaker v. Housing Authority, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 88 096268 (January 12, 1994, Lewis, J.), the court declined to rule on the plaintiff's motion to strike the special defenses after he had filed a reply as to each of the special defenses five years previously.
In Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A.2d 1134 (1989), the court found that the plaintiff, by simultaneously filing a motion to strike and a motion to dismiss, waived the right to file a motion to dismiss.
After filing an answer addressed to only the first four counts of the complaint, the defendant in the instant case filed a request to revise the fifth count without adhering to the order of the pleadings required. Further, he did not seek the permission of the court or the acquiescence of the plaintiff prior to filing the request to revise. For the aforementioned reasons, the plaintiff's motion to strike the defendants' request to revise is granted.