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You represent the plaintiff in a civil lawsuit that has gone to verdict and judgment has entered. You have timely appealed the trial court’s judgment challenging its decision to strike several counts of your complaint during the early stages of the litigation. Although you had exercised your right to re-plead some of the stricken counts, you specifically stated in your substituted complaint that you were preserving your appellate rights as to the others. In an abundance of caution, you even filed a notice of intent to appeal the ruling on the stricken counts. Nonetheless, your appeal has been dismissed because your appellate rights were not properly preserved. This hypothetical deals with a common problem facing a plaintiff after a motion to strike has been ruled upon — whether and how to re-plead. The wrong decision can have serious appellate ramifications. A ruling on a motion to strike may lead to a final judgment that is immediately appealable. Others, however, are merely interlocutory rulings that do not dispose of a party or an entire pleading. As to those interlocutory rulings, parties must properly juxtapose their right to appeal certain rulings with their right to re-plead as to others. Practice Book �10-44 provides, in relevant part, that “[w]ithin 15 days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading. … ” However, under the Connecticut Supreme Court’s decision in Royce v. Westport, it is well settled that, if a new pleading is filed after a motion to strike has been granted, the former pleading is deemed withdrawn, and any related appellate rights are waived. Thus, Royce holds that a party may either “amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him and appeal” the judgment. “The choices are mutually exclusive,” according to Royce. This rule is clear and easily reconciled with a situation involving a one-count pleading that has been stricken. Reconciliation is more difficult, however, in the familiar situation where all or part of a multi-count pleading has been stricken and the aggrieved party wishes to re-plead as to some counts and preserve appellate rights as to others. The rule’s mutual exclusivity provision is an impediment to accomplishing a perfectly reasonable objective. In Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., a 2002 decision, the Connecticut Supreme Court suggested in dicta that it may be an acceptable practice to re-plead some stricken portions of a pleading while expressly preserving appellate rights related to others. The court’s comment does not criticize that approach, but neither does it officially sanction it. Thus, Suffield does little to illuminate what is proper practice in this situation. Meanwhile, Connecticut’s rules seem to dictate that, once a substitute pleading is filed, it is as if the prior pleading or pleadings never existed. The Suffield approach therefore leaves open a very real question whether rights are lost when a substituted complaint is filed, notwithstanding exhortations to the contrary strewn throughout the substitute pleading. A better approach was suggested by the judge in St. Amand v. Kromish in 1998 when he was a Superior Court judge. The judge’s suggestion is that aggrieved parties concurrently file a substitute pleading, which re-pleads some of the counts, and a motion for judgment in favor of the prevailing party with respect to the remaining counts. This ensures the preservation of appellate rights and allows a party to exercise the right to re-plead. You can still expressly reserve your rights in the substitute complaint as to the counts that are not re-pled. What harm can that cause? If it makes you feel better, you can also file a notice of intent to appeal. Section 61-5 of the Practice Book does not require that, however, unless the ruling has disposed of all claims brought by or against a party. Moving for judgment, however, makes a clear record that is consistent with the rules and should preserve appellate rights. As the hypothetical above illustrates, you had the right idea in mind when responding to the trial court’s ruling on the defendant’s motion to strike but would have been wise to do more. While the steps you took to preserve your appellate rights were not unreasonable, the Suffield approach deserved additional scrutiny. Moving for judgment against yourself as to stricken counts from which you want to appeal should preserve your right to do so. John Farley is an appellate attorney at Halloran & Sage in Hartford, Conn.

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