DocketNumber: No. CV92 03 87 50S
Citation Numbers: 1992 Conn. Super. Ct. 6734, 7 Conn. Super. Ct. 1062
Judges: McGRATH, J.
Filed Date: 7/16/1992
Status: Non-Precedential
Modified Date: 4/17/2021
On March 5, 1992, the Commission filed a motion to strike the fifth count of the plaintiff's "Appeal" and paragraphs five and six of its prayer for relief, accompanied by a memorandum of law, on the ground that the cause of action seeking money damages for an alleges violation of
A motion to strike is the proper vehicle for contesting "the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts." Practice Book 152(4). An administrative appeal "shall be considered to be a civil action and, except as otherwise required by this section or the rules of the superior court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes." General Statutes
It should be noted that the plaintiff's complaint is entitled "Appeal" and follows both the timetable for service and filing as well as the format of an appeal brought pursuant to General Statutes
In a zoning appeal taken pursuant to General Statutes
The court, after a hearing, "may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from." General Statutes
Appeals from decisions of zoning boards and commissions are also different from ordinary civil actions in that they "shall be privileged cases and shall be heard as soon as is practicable unless cause is shown to the contrary." General Statutes
Because the plaintiff has filed this action as an appeal pursuant to General Statutes
Practice Book 133 provides as follows:
In any civil action the plaintiff may include in his complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall all be brought to recover, either (1) upon contract, express or implied, or (2) for injuries, with or without force, to person and property, or either, including a conversion of property to the defendant's use, or (3) for injuries to character, or (4) upon claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same, or (5) upon claims to recover personal property specifically, with or without damages for the withholding thereof, or (6) claims arising by virtue of a contract or by operation of law in favor of or against a party in some representative or fiduciary capacity, or (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action. The several causes of action so united shall all belong to one of these classes, and, except in an action for the foreclosure of a mortgage or CT Page 6737 lien, shall affect all the parties to the action, and not require different places of trial, and shall be separately stated; and, in any case in which several causes of action are joined in the same complaint, or as matter of counterclaim or setoff in the answer, if it appears to the court that they cannot all be conveniently heard together, the court may order a separate trial of any such cause of action or may direct that any one or more of them be deleted from the complaint or answer. (See Gen. Stat.,
52-97 and annotations.)
The plaintiff argues that the court should consider the expansive definition of the term "transaction" used in Practice Book 133(7). However, it is noted that no matter how expansively "transaction" is defined, Practice Book 133(7) provides that if several causes of action are united in the same complaint, "they shall all be brought to recover . . . (7) upon claims, whether in contract or tort or both, arising out of the same transaction. . . ." (Emphasis added). It is clear that while the plaintiff's 1983 claim may fall within this class and may, as the plaintiff asserts, arise out of the same transaction as its appeal, the plaintiff's zoning appeal cannot be characterized as a claim in contract or tort which would fall into this class of claims which may be joined in the same complaint. It is noted that zoning appeals are not included in any of the classes listed in Practice Book 133 to which "[t]he several causes of action so united shall belong."
It is clear that an adjudication of the plaintiff's 1983 claim and an award of the monetary relief requested pursuant to that claim are outside both the court's scope of review and its authority to grant relief in an appeal from decisions of a planning and zoning commission brought pursuant to General Statutes
WILLIAM J. McGRATH, JUDGE