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

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SHERI SPEER v. U.S. BANK
TRUST, N.A., ET AL.
(AC 44902)
Alvord, Moll and Harper, Js.
Syllabus
The plaintiff sought to recover damages from the defendant bank for, inter
alia, slander of title stemming from the bank’s recording of a certificate
of foreclosure on the land records relating to certain real property of
which she was the record owner. The trial court granted the bank’s
motion to strike, concluding that count one, alleging slander of title,
was insufficiently pleaded and that the other counts were time barred.
The plaintiff subsequently filed a revised complaint, repleading her alle-
gations of slander of title and violations of the Connecticut Unfair Trade
Practices Act (CUTPA) (§ 42-110a et seq.). The plaintiff appealed to this
court from the order granting the motion to strike, which dismissed the
appeal for lack of a final judgment. The trial court thereafter granted
the defendant’s motion for judgment and rendered judgment thereon,
concluding that the revised complaint did not include any new facts
distinguishing the plaintiff’s repleaded claims for slander of title and
violations of CUTPA from the stricken ones. On the plaintiff’s amended
appeal, held that the plaintiff waived her right to appeal from the trial
court’s order striking the original complaint: the plaintiff’s claim on
appeal focused exclusively on alleged procedural infirmities in the
motion to strike, alleging that it did not comply with Practice Book
(2013) § 10-41 and was not directed to the operative complaint but did
not claim that the revised complaint was materially different from the
original complaint,, the repeated claims in the revised complaint were
nearly identical to, and contained no materially different allegations in
support of, those claims as set forth in the original complaint, and merely
reiterating claims previously disposed of by the court did not constitute
a material change; moreover, notwithstanding the plaintiff’s claim that
the trial court erred in granting the motion for judgment because an
automatic appellate stay was in effect, no enforceable appellate stay of
execution resulted from the filing of a jurisdictionally infirm appeal.
Argued October 5—officially released November 15, 2022
Procedural History
Action for, inter alia, slander of title, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New London, where the action was withdrawn
as to the defendant JPMorgan Chase Bank, N.A.; there-
after, the court, Calmar, J., granted the named defen-
dant’s motion to strike; subsequently, the plaintiff filed
a revised complaint; thereafter, the plaintiff appealed
to this court, which dismissed the appeal for lack of
a final judgment; subsequently, the court, Calmar, J.,
granted the named defendant’s motion for judgment
and rendered judgment thereon, and the plaintiff filed
an amended appeal; thereafter, the plaintiff withdrew
the appeal as to the defendant Bendett & McHugh, P.C.
Affirmed.
Sheri Speer, self-represented, the appellant (plain-
tiff).
Thomas N. Abbott, pro hac vice, with whom were
John J. Radshaw III, and Sean P. Clark, for the appellee
(named defendant).
Opinion
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 Sep-
tember 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 rele-
vant 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 allega-
tions 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 Connecti-
cut 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 com-
plaint, 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 por-
tion of the original appeal challenging the trial court’s
granting of U.S. Bank’s motion to strike should be dis-
missed 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., 691.
‘‘After a court has granted a motion to strike, the plain-
tiff 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 sus-
taining of the [motion to strike] the original pleading.
. . . If the allegations in [the plaintiff’s] substitute com-
plaint 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 omit-
ted; internal quotation marks omitted.) Id., 693–94; 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 quo-
tation marks omitted)); Parker v. Ginsburg Develop-
ment 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 grant-
ing of a motion to strike, the defendant may take advan-
tage 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 deficien-
cies 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. 850. ‘‘The law in this area requires
the court to compare the two complaints to determine
whether the amended complaint advanced the plead-
ings by remedying the defects identified by the trial
court in granting the earlier motion to strike. . . . In
determining whether the amended pleading is materi-
ally different, we read it in the light most favorable
to the plaintiff.’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Id., 851. 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 the motion to strike
the earlier pleading. . . . Factual revisions or additions
are necessary; mere rewording that basically restate[s]
the prior allegations is insufficient to render a complaint
new following the granting of a previous motion to
strike. . . . The changes in the allegations need not,
however, be extensive to be material.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 852–53.
To determine whether the revised complaint was
‘‘materially different’’ from the original complaint, ‘‘we
first examine the ruling striking the first . . . com-
plaint.’’ St. Denis v. de Toledo, supra, 90 Conn. App.
694. In the ruling granting U.S. Bank’s motion to strike,
the court concluded that count one was insufficiently
pleaded and that counts one, two, and four were time
barred. In the ruling granting U.S. Bank’s motion for
judgment, the court stated that the plaintiff’s revised
complaint ‘‘does not include any new facts that distin-
guish her repleaded claims for slander of title and viola-
tion[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.’’ Notably, the
plaintiff does not claim on appeal that the revised com-
plaint was materially different from the original com-
plaint stricken by the court; instead, with respect to
the motion to strike, the plaintiff focuses exclusively
on its alleged procedural infirmities. In any event, on
the basis of our review of the court’s decision striking
the original complaint and our comparison of the two
complaints, we conclude that the repleaded claims in
the revised complaint are nearly identical to, and con-
tain no materially different allegations in support of,
those claims as set forth in the original complaint.
Because the plaintiff does not attempt to persuade us
otherwise, we decline to expand on this conclusion. It
suffices to state that merely reiterating claims pre-
viously disposed of by the court does not constitute a
material change. See, e.g., St. Denis v. de Toledo, supra,
696. Accordingly, applying the principles recited pre-
viously in this opinion, we conclude that the plaintiff
has waived her right to appeal from the court’s order
striking the original complaint.8
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff waived her right to appear for oral argument.
2
Although the plaintiff’s complaint also named Bendett & McHugh, P.C.,
and JPMorgan Chase, N.A., as defendants, they are not participating in
this appeal.
3
We note that Practice Book (2013) § 10-41 was repealed, effective January
1, 2014, seven years prior to the filing of U.S. Bank’s motion to strike.
4
Because the Superior Court had not yet reacquired jurisdiction, this filing
is a nullity. See Wells Fargo Bank, N.A. v. Tarzia, 186 Conn. App. 800,
804–805 n.4, 201 A.3d 511 (2019).
5
Practice Book § 10-44 provides in relevant part: ‘‘Within fifteen days after
the granting of any motion to strike, the party whose pleading has been
stricken may file a new pleading; provided that in those instances where
an entire complaint, counterclaim or cross complaint, or any count in a
complaint, counterclaim or cross complaint has been stricken, and the party
whose pleading or a count thereof has been so stricken fails to file a new
pleading within that fifteen day period, the judicial authority may, upon
motion, enter judgment against said party on said stricken complaint, coun-
terclaim or cross complaint, or count thereof. . . .’’
6
In addition to appealing from the granting of U.S. Bank’s motion to strike,
the plaintiff appealed from the granting of a motion to dismiss filed by
the defendant Bendett & McHugh, P.C. The portion of the original appeal
challenging the judgment of dismissal was not encompassed by this court’s
October 6, 2021 order. On April 19, 2022, the plaintiff withdrew the portion
of the original appeal directed to the defendant Bendett & McHugh, P.C.
7
See footnote 3 of this opinion.
8
The plaintiff also claims that the court erred in granting the motion for
judgment because the motion was filed at a time when an automatic appellate
stay was in effect pursuant to Practice Book § 61-11 (a) by virtue of the
plaintiff’s filing of the original appeal. This claim is without merit. See
Cunniffe v. Cunniffe, 150 Conn. App. 419, 430, 91 A.3d 497 (holding that
‘‘no enforceable appellate stay of execution results from the filing of a
jurisdictionally infirm appeal’’), cert. denied, 314 Conn. 935, 102 A.3d
1112 (2014).