Benedetto v. Dietze & Associates, LLC ( 2015 )

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ANN MARIE BENEDETTO ET AL. v. DIETZE AND
ASSOCIATES, LLC, ET AL.
(AC 36778)
Gruendel, Lavine and Prescott, Js.
Argued April 16—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Waterbury, Hon. Barbara J. Sheedy, judge trial referee
[motion to reargue; objection to request to revise];
Shapiro, J. [summary judgment].)
Eddi Z. Zyko, for the appellants (plaintiffs).
Thomas P. O’Connor, with whom were Wyatt R. Jan-
sen, and, on the brief, Gerard N. Saggese III, for the
appellees (named defendant et al.).
Opinion
PER CURIAM. In this case arising out of alleged
employment discrimination, the plaintiffs, Ann Marie
Benedetto and Joseph Benedetto,1 appeal from the sum-
mary judgment rendered by the trial court in favor of
the defendants Dietze and Associates, LLC (Dietze),
and Herlof Sorensen.2 The plaintiffs claim on appeal
that the court (1) abused its discretion by granting the
defendants’ motion to reargue its ruling sustaining the
plaintiffs’ objection to the defendants’ request to revise,
and (2) improperly granted summary judgment in favor
of the defendants. We affirm the judgment of the
trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. In an amended com-
plaint filed against the defendants, the plaintiffs
asserted claims of age discrimination pursuant to the
Connecticut Fair Employment Practices Act, General
Statutes § 46a-60 et seq., statutory forgery pursuant to
General Statutes § 52-565, and common-law loss of con-
sortium relating to Benedetto’s termination from
employment as an office manager at Dietze. The central
allegation underlying each of these claims is that Bened-
etto’s direct supervisor, Sorensen, fired her one day
before her sixty-fifth birthday because of her age and
to cover up an act of forgery that he had enlisted her
assistance in committing.
The defendants filed a request to revise the plaintiffs’
amended complaint under Practice Book § 10-35 et seq.
The plaintiffs objected, arguing that the request violated
the order of the pleadings set forth in Practice Book
§ 10-6 because it was filed after a previous motion to
strike one of the plaintiffs’ earlier complaints. Although
the court, Hon. Barbara J. Sheedy, judge trial referee,
initially sustained the plaintiffs’ objection, the court
later overruled it after the defendants moved to reargue
the issue. The plaintiffs subsequently filed a revised
amended complaint.
Following their request to revise, the defendants
moved for summary judgment on all counts of the oper-
ative complaint. They argued that there was no genuine
issue of material fact that the circumstances sur-
rounding Benedetto’s termination did not give rise to
an inference of discrimination, and that Dietze had met
its burden of articulating a nondiscriminatory rationale
for terminating her employment. They further con-
tended that Benedetto could not prevail on her forgery
claim because the undisputed evidence demonstrated
that she was a willing participant in the unlawful behav-
ior alleged in her complaint. Finally, the defendants
argued that because both of Benedetto’s individual
claims failed, so did Joseph Benedetto’s derivative loss
of consortium claim. In a comprehensive and well rea-
soned opinion, the court, Shapiro, J., agreed with all
of the defendants’ arguments, and rendered summary
judgment in favor of the defendants on all counts
alleged in the operative complaint. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The plaintiffs first claim that the court improperly
granted the defendants’ motion to reargue its ruling
sustaining the plaintiffs’ objection to the defendants’
request to revise. Specifically, the plaintiffs contend that
the defendants’ motion to reargue improperly sought a
‘‘second bite at the apple’’ and was based on law that
was available to the defendants at the time that they
filed their request to revise. In response, the defendants
contend that their motion to reargue permissibly sought
to correct factual and legal errors underlying the court’s
initial ruling. We agree with the defendants.
The following facts are relevant to our resolution of
this claim. The plaintiffs’ first complaint raised thirteen
claims against the defendants relating to Benedetto’s
termination of employment. The defendants moved to
strike each of those claims on various grounds. Judge
Shapiro granted in part the defendants’ motion. There-
after, the plaintiffs filed an amended complaint.
The defendants filed a request to revise seeking to
delete portions of the plaintiffs’ amended complaint.
The plaintiffs objected on the ground that the defen-
dants had filed their request out of order without the
court’s permission. Specifically, relying on Practice
Book §§ 10-63 and 10-7,4 they contended that the defen-
dants had waived their right to file a request to revise
when they previously moved to strike the plaintiffs’
first complaint. Judge Sheedy initially agreed with the
plaintiffs and sustained their objection.
Following the court’s ruling, the defendants moved
for reargument pursuant to Practice Book § 11-12. In
their motion, they contended that the plaintiffs’ asser-
tion that the defendants had filed their request to revise
out of order was factually and legally incorrect. In par-
ticular, they argued that by filing an amended complaint
after the court had granted in part the defendants’
motion to strike, the plaintiffs had essentially reset the
order of the pleadings such that a request to revise
could be filed properly. In support of their argument,
the defendants cited two cases from our Supreme Court
and this court. The trial court agreed with the defen-
dants’ argument, and overruled the plaintiffs’ objection
to the request to revise.
‘‘[W]e review the adjudication of a motion to reargue
for an abuse of discretion. . . . In determining whether
there has been an abuse of discretion, every reasonable
presumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
[when] an abuse of discretion is manifest or [when]
injustice appears to have been done.’’ (Citation omitted;
internal quotation marks omitted.) Weiss v. Smulders,
313 Conn. 227, 261, 96 A.3d 1175 (2014).
‘‘[T]he purpose of a reargument is . . . to demon-
strate to the court that there is some decision or some
principle of law which would have a controlling effect,
and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used
to address . . . claims of law that the [movant] claimed
were not addressed by the court. . . . [A] motion to
reargue [however] is not to be used as an opportunity
to have a second bite of the apple . . . .’’ (Internal
quotation marks omitted.) Liberti v. Liberti, 132 Conn.
App. 869, 874, 37 A.3d 166 (2012).
The plaintiffs’ claim that the court improperly granted
the defendants’ motion for reargument merits little dis-
cussion. A motion to reargue is proper either when its
purpose is to direct the court’s attention to a case or
legal principle that the court has overlooked or when
the movant seeks to correct a misapprehension of facts.
Id. In the present case, the defendants’ motion fell
squarely within the first of these two categories. It spe-
cifically directed the court’s attention to two cases that
were relevant to court’s ruling sustaining the plaintiffs’
objection to the request to revise and that the defen-
dants could reasonably have believed were overlooked
by the court.5 Moreover, because the defendants’
motion to reargue did not address the underlying merits
of their request to revise, but only the plaintiffs’ objec-
tion thereto, the defendants cannot reasonably be said
to have sought a ‘‘second bite at the apple.’’ We therefore
conclude that the court did not abuse its discretion in
granting the defendants’ motion for reargument.
II
The plaintiffs next argue that the court improperly
granted summary judgment in favor of the defendants.
Specifically, they contend that it was improper for
Judge Shapiro to grant summary judgment on Bened-
etto’s age discrimination claims because the defendants
failed to submit any evidence from her employment
personnel file and instead relied on an affidavit from
Michael Jedlicka, a member of Deitze. They further
argue that the court could not properly grant summary
judgment on Benedetto’s statutory forgery claim
because a disputed issue of material fact existed over
whether she acted under duress in participating in the
illegal conduct alleged in that claim. We conclude that
the plaintiffs’ claims are inadequately briefed and
decline to review them.
‘‘It is well settled that [w]e are not required to review
claims that are inadequately briefed. . . . We consis-
tently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . [F]or this court judiciously and efficiently to con-
sider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their
briefs. We do not reverse the judgment of a trial court
on the basis of challenges to its rulings that have not
been adequately briefed. . . . The parties may not
merely cite a legal principle without analyzing the rela-
tionship between the facts of the case and the law
cited. . . . [A]ssignments of error which are merely
mentioned but not briefed beyond a statement of the
claim will be deemed abandoned and will not be
reviewed by this court.’’ (Internal quotation marks omit-
ted.) Clelford v. Bristol, 150 Conn. App. 229, 233, 90
A.3d 998 (2014).
With respect to their age discrimination claim, the
plaintiffs assert that the court could not have granted
the defendants’ motion for summary judgment because
‘‘[n]othing . . . from [Benedetto’s] personnel file was
provided’’ and because Jedlicka’s affidavit ‘‘as a matter
of law fails to establish that there is no genuine issue
of material fact.’’ The plaintiffs make no attempt, how-
ever, to support either of these assertions with any
discussion or analysis. Instead, they quote from General
Statutes § 31-128a, which provides the statutory defini-
tion of ‘‘personnel file,’’ and General Statutes § 31-128b
(c), which obligates employers to provide employees
with a copy of any documentation of any disciplinary
action imposed upon them, without providing any
explanation how either of these two statutes support
their assertions. Because the plaintiffs have made no
attempt to explain precisely why the defendants were
obligated to provide evidence from Benedetto’s person-
nel file in support of their motion for summary judg-
ment, or why Jedlicka’s affidavit failed to establish the
absence of a genuine issue of material fact, we deem
this claim abandoned and decline to review it.
The plaintiffs’ statutory forgery claim is similarly
inadequately briefed. Their entire argument consists of
quoting one sentence from one of the decisions relied
upon by the trial court and attempting—unpersua-
sively—to distinguish the present case on the basis of
that single sentence.6 The plaintiffs do not, however,
make any attempt to analyze any of the other case law
relied upon by the trial court, nor do they attempt to
provide any independent analysis why Benedetto’s par-
ticipation in the alleged forgery scheme should not pre-
clude her from prevailing on her statutory forgery claim.
Accordingly, we conclude that this claim is also inade-
quately briefed and decline to review it.
The judgment is affirmed.
1
Because Ann Marie Benedetto is the principal plaintiff in this action, we
refer to her individually by her last name and Joseph Benedetto by his
full name.
2
The defendants in this action also included David McCann, Paul Schwack,
and Michael Jedlicka; the trial court previously rendered judgment in their
favor and no appeal was taken from that decision. The defendant Commis-
sion on Human Rights and Opportunities did not appear before the trial
court. We refer in this opinion to Dietze and Sorensen as the defendants.
3
Practice Book § 10-6 provides: ‘‘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 com-
plaint.
‘‘(6) The plaintiff’s request to revise the defendant’s answer.
‘‘(7) The plaintiff’s motion to strike the defendant’s answer.
‘‘(8) The plaintiff’s reply to any special defenses.’’
4
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.’’
5
In particular, the defendants cited in their motion to Royce v. Westport,
183 Conn. 177, 179, 439 A.2d 298 (1981), in which our Supreme Court stated:
‘‘When a [motion to strike] is [granted] 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.’’ The defendants also cited
P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 50,
643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994), in which
this court stated: ‘‘When 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.’’ (Citation omitted.)
6
Specifically, the plaintiffs claim that the following language from Riley
v. Pierson, 51 Conn. Supp. 513, 530, 13 A.3d 732 (2009), aff’d, 126 Conn.
App. 486, 12 A.3d 581 (2011), supports their argument on appeal: ‘‘Nor has
the plaintiff submitted an affidavit or any other documentary support for a
claim of duress.’’ Id. Unlike the plaintiff in Riley, the plaintiffs argue, Bened-
etto has submitted an affidavit establishing that she acted under duress.
The plaintiffs fail, however, to direct us to any portion of the affidavit
supporting that assertion, and we are unable to discern any testimony con-
tained therein creating a genuine issue of material fact that her participation
in the alleged forgery was motivated by threats from her employer.