DocketNumber: 12467
Citation Numbers: 38 Conn. App. 715
Judges: Hennessy, Lavery
Filed Date: 8/15/1995
Status: Precedential
Modified Date: 9/8/2022
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.
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.
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 with
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.
Practice Book § 112
Although pleadings cannot generally be filed out of order; Sabino v. Ruffolo, 19 Conn. App. 402, 404-405,
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 verdict
“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
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.
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.
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. . . .”
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.
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.
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.”
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.
See footnote 1.
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.
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.”