Wilson v. Hryniewicz , 38 Conn. App. 715 ( 1995 )

Hennessy, J.

The defendants, Paul Hryniewicz and West Service Corporation, appeal from the trial court’s judgment. They claim that the trial court improperly denied (1) their motion to strike and (2) their motions for directed verdict and judgment notwithstanding the verdict on count one of the plaintiff’s complaint, which alleged that the defendants deprived the plaintiff of rights in violation of 42 U.S.C. § 1983.¹ The plaintiff, William H. Wilson, cross appeals and claims that the trial court improperly denied his motion to set aside a directed verdict in the defendants’ favor on the second count of the complaint, which alleged tortious interference with contract. We affirm the judgment of the trial court.

This action arises out of a dispute between the plaintiff, a developer, and the defendants, a private utility in the town of Suffield, and one of its employees. The plaintiff, who was developing a subdivision in Suffield, had an agreement with the defendants wherein West Service Corporation would supply the subdivision site with water. The defendants delayed providing water to the plaintiff’s subdivision for several years. An action was initiated to resolve the question of liability and the amount of damages allegedly resulting from the delay.

The original complaint included three counts: the first stating a claim pursuant to 42 U.S.C. § 1983; the second stating a claim for tortious interference with contract; and the third stating a claim for vexatious litigation. The defendants filed a motion to strike the first and second counts of the original complaint. This motion was denied by the trial court and, after filing notice of intent to appeal the denial of the motion to strike, the defendant filed an answer to the original complaint.² During trial, the plaintiff amended his complaint by dropping the third count and making minor modifications in the two remaining counts. In response, the defendant filed an answer to the amended complaint. No motion to strike the amended complaint was filed.

After the plaintiffs case had been presented, the defendants moved for a directed verdict on both counts. The trial court granted the defendants’ motion for directed verdict as to count two, which alleged tortious interference with contract, but denied the motion as to count one, which alleged a claim pursuant to 42 U.S.C. § 1983. After deliberations, the jury returned a verdict in favor of the plaintiff on count one, and judgment was rendered in accordance with that verdict.

I

The first issue raised by the defendants is whether the trial court improperly denied their motion to strike the first count of the complaint. We do not address this issue because the denial of a motion to strike the original complaint cannot be appealed after the filing of an amended complaint that the defendant answers without moving to strike. See Wesley v. DeFonce Contracting Corp., 153 Conn. 400, 404-405, 216 A.2d 811 (1966); Lakitsch v. Brand, 99 Conn. 388, 389, 121 A. 865 (1923).

The defendants argue that the motion to strike, and their appeal from its denial, should be construed to survive and to refer forward to the amended complaint.³ In support of this argument, the defendants claim that the amended complaint did not make any substantive changes in the first cause of action. The defendants also point out that at the time the amended complaint was filed a jury had been chosen and the case was already proceeding to trial; they suggest that the filing of a new motion to strike might have impeded the timely progress of the trial. This argument is not persuasive.

Practice Book § 112⁴ dictates the order of pleadings in a civil case. A motion to strike a complaint must precede the defendant’s answer to that complaint. Pursuant to Practice Book § 113, “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.”

Although pleadings cannot generally be filed out of order; Sabino v. Ruffolo, 19 Conn. App. 402, 404-405, 562 A.2d 1134 (1989); a party may amend a previously filed pleading. See Practice Book § 176. 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. See Wesley v. DeFonce Contracting Corp., supra, 153 Conn. 404-405; Lakitsch v. Brand, supra, 99 Conn. 389.

The defendants could have filed a timely motion to strike the amended complaint. They failed to do so, and instead filed an amended answer. By operation of Practice Book § 113, the filing of the answer to the amended complaint acts as a waiver of the right to file a motion to strike the amended complaint.

The appeal from the denial of the motion to strike the original complaint is not properly before us, and we will not consider the issue further.

II

The second issue raised by the defendants is whether the trial court improperly denied their motion for judgment notwithstanding the verdict⁵ on the first count of the complaint, alleging a claim under 42 U.S.C. § 1983.⁶ We are unable to review this claim in light of the inadequate record provided by the appellants.

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1987); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978). These two elements denote two separate areas of inquiry: the plaintiff must prove a constitutional or statutory violation and that violation must have been committed by the defendant acting under color of law. Flagg Bros., Inc. v. Brooks, supra, 155-56. The defendants argue that in light of all of the plaintiff’s evidence, the defendants could not reasonably have been found to have acted under color of law, and, as a result, the jury could not have reasonably rendered a verdict in the plaintiff’s favor.

The trial court denied the motions for directed verdict and judgment notwithstanding the verdict on this count, but we cannot discern the basis for this decision from the record. In denying the motion for directed verdict, the trial court indicated that the central issue to be resolved in connection with the § 1983 claim was whether the determination that the defendants did or did not act under color of law was a question of law for the court to decide or a question of fact to be submitted to the jury. The trial court further indicated that it decided to submit the question to the jury on the basis of a split of authority in other jurisdictions. The transcripts provided to this court, however, fail to inform us as to what split of authority the trial court was referring, or what law controlled its decision to treat the “under color of law” issue as a question of fact.⁷ It is the duty of the appellants to provide an adequate record. See Practice Book § 4061.⁸ The defendants have failed tó do so by failing to move for an articulation pursuant to Practice Book § 4051. Accordingly, we are without a sound basis for reviewing this claim on appeal and decline to do so.

Ill

The plaintiff cross appeals and challenges the judgment denying his motion to set aside the verdict on the second count of his complaint, which alleged tortious interference with a contract. Again, we have not been provided with an adequate record to review this claim.

The trial court did not prepare a memorandum of decision regarding either the granting of the motion for directed verdict on the second count or the denial of the motion to set aside the directed verdict on this count. The plaintiff has also failed to furnish this court with an adequate record. We have repeatedly held that it is an appellant’s duty to provide us with an adequate record. State v. Rosedom, 34 Conn. App. 141, 144, 640 A.2d 634 (1994); State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). Accordingly, we are unable to consider the claim raised by the plaintiff’s cross appeal.

The judgment is affirmed.

In this opinion Landau, J., concurred.

1 Title 42 of the United States Code § 1983 provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

2 The defendants’ brief framed an additional issue for appeal: whether the trial court improperly denied their motion to strike the second count of the complaint. During oral argument the defendants conceded that the denial of their motion to strike the second count of the complaint was moot as a result of the trial court’s granting the defendants’ motion for a directed verdict on this count.

3 Although the appealability of the motion to strike the plaintiff’s original complaint was not addressed in any of the briefs filed with this court, the issue was argued by counsel at oral argument.

4 Practice Book § 112 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 complaint.

“(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.”

5 Although the defendants brief the denial of the motion for directed verdict and the refusal to enter a judgment notwithstanding the verdict as separate issues, the facts, arguments and questions of law raised by these motions are the same. We consider the denial of these motions as a single issue.

6 See footnote 1.

7 In its oral decision denying the defendants a directed verdict on the § 1983 claim, the trial court refers to the “admirable argument” and “very well written memoranda of law” supplied by the parties. Even if we could construct the basis for the trial court’s decision from these sources, we would decline to do so. Such an inquiry would require review of dozens of pages of transcript and written argument and it is the responsibility of the appellant to provide us with an adequate record for review. See Practice Book § 4061.

8 Practice Book § 4061 provides: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.

“If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.

“It is the responsibility of the appellant to provide an adequate record for review.”