- Litigation & Dispute Resolution
|University ||Wheaton College, B.A., Political Science, magna cum laude, 1991|
|Law School||University of Connecticut School of Law, J.D., 1996|
|Admitted||1996, Connecticut; 1998, District of Connecticut; 2006, 2nd Circuit Court of Appeals|
Connecticut Bar Association
CBA-YLS Appellate Practice
Committee (Past Co-chair)
|Born||New Haven, Connecticut, November 23, 1969|
Laura Zaino is an appellate and trial advocate whose experience spans a broad range of practice areas. She represents individual and corporate clients in both state and federal court throughout all stages of the litigation process.
As a member of the firm's appellate practice group, Laura has handled a wide variety of appeals, including million dollar contract disputes, property boundary disputes, municipal liability and taxation issues, professional malpractice claims, foreclosure and personal injury matters. Laura also works closely with and assists trial counsel with preserving issues and perfecting the trial record for appeal.
Laura's trial practice includes the defense of personal injury, professional liability, premises liability and automobile claims. She also prosecutes and defends subrogation claims.
Laura is a member of the CBA and has served as the co-chair of the CBA's Young Lawyer's Section's Appellate Practice Committee.
Don't Strike Out: Preserving Appellate Rights After a Motion to Strike
Occam's Razor Appellate Law Update, 04/02/2004
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 decision to strike several counts of your Complaint during the early stages of the litigation. Although you had exercised your right to re-plead as to some of the stricken counts, you specifically stated in your Amended Complaint that you were preserving your appellate rights as to the others. You also filed a notice of intent to appeal.1 Nonetheless, your appeal has been dismissed because your appellate rights were hot properly preserved.
To Plead Or Not To Plead
This hypothetical deals with what is perhaps the most common decision a party is faced with after a motion to strike has been ruled upon - whether and how to re-plead. Though a seemingly benign question, it must be answered with great care because, as demonstrated above, the wrong response can have serious appellate ramifications. Before endeavoring to answer this question, a party must engage in a careful and cogent analysis of Connecticut's rules of trial and appellate practice and legal precedent.
Under Connecticut Practice Book 10-39, a motion to strike is properly used to challenge the sufficiency of a pleading. This challenge may be directed to a pleading in its entirety, or to portions thereof.2 As such, a ruling on a motion to strike may give rise to a final judgment that is immediately appealable;3 or may constitute an interlocutory ruling that must be preserved for appeal.4 The scope of this article is limited to interlocutory rulings that must be preserved for appeal. More specifically, it focuses on how parties may property juxtapose their right to appeal certain rulings with their right to re-plead certain rulings with their right to re-plead as to others.
Practice Book 10-44 provides, in relevant part, that [w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . .5 However, it is well settled in Connecticut that if a new pleading is filed after a motion to strike has been granted, the former pleading is deemed withdrawn and any appellate rights related thereto are waived.6 Thus, 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.7 The choices are mutually exclusive. 8
This rule is clear and can be easily reconciled with a situation involving a one count pleading that has been stricken.9 Reconciliation becomes more difficult, however, in the familiar situation wherein a multi-count pleading, or portions thereof, 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 would seem to be an impediment to accomplishing a perfectly reasonable end.
However, in Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., a 2002 decision, the Connecticut Supreme Court suggests in footnote number 2 that it is acceptable practice to re-plead some stricken portions of a pleading while preserving appellate rights related to others.10 This footnote, however, merely states that the plaintiff in Suffield filed a timely amended complaint following the granting of a motion to strike which sought to preserve appellate rights as to the first and second counts and to re-plead as to the third and fourth counts.11 While the court's comment certainly does not sanction such practice, it does not criticize it, either. Nonetheless, the commentary does little to illuminate what is proper practice in this regard.12 Moreover, as a practical matter, Connecticut's rules plainly dictate that once an amended pleading is filed, it is as if the prior pleading or pleadings never existed. Under the Suffield approach, then, a very real question exists as to whether rights even exist which can be preserved.13
A better approach, as recognized by at least one Superior Court judge, is for the aggrieved party to concurrently file an amended 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.14 This ensures preservation of appellate rights and allows a party to exercise the right to re-plead. While this approach appears to contravene the afore-stated mutual exclusivity rule, it is important to recognize that in Royce v. Westport, the decision routinely cited for defining this rule, a motion to strike was granted as to the complaint in its entirety and the plaintiff sought to re-plead the same exact complaint and challenge the ruling. This factual distinction, combined with the Suffield precedent that appears to sanction the practice of re-pleading some counts while preserving others for appeal and common sense should alleviate this concern.15
Beware of the Late Amendment
It is important to recognize that issues involving the rules discussed above tend to arise most often in cases where a pleading, or portion thereof, has been stricken. Even so, parties should not lose sight of the fact that appellate rights may flow just as readily when a motion to strike is denied. In Wilson v. Hyrniewicz, 38 Conn. App. 715 (1995), for example, a defendant lost the right to appeal a denial of a motion to strike portions of the plaintiff's complaint by answering an amended complaint, filed during trial, in its entirety. While the defendant filed a notice of intend to appeal at the time his motion was denied, that notice lost any force it may have had when the amended complaint was filed and answered.16 The court stated the denial of a motion to strike the original complaint cannot be appealed after the fling of an amended complaint that the defendant answers without moving to strike.17 While not in the context of Practice Book 10-44, this nonetheless emphasizes the degree of caution that should be exercised when seeking to preserve appellate rights following all rulings on motions to strike. Once a motion to strike has been filed and rules upon in a case, it should never be forgotten.
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 ere not unreasonable,18 the Suffield ambiguity deserved additional scrutiny with an eye toward the nuances of appellate practice and procedure. Additional research and/or consulting with an appellate lawyer prior to responding to the court's ruling on the motion to strike would have accomplished this and thus, saved the appeal.
In sum, there is a great deal to consider with respect to appellate rights when a motion to strike has been filed and ruled upon in a case. Extra caution should be exercised after such a ruling to avoid losing those appellate rights.
1 Connecticut Practice Book 61-5 provides that a notice of intent to appeal is only necessary if the deferred appeal is to be taken from a judgment that disposes of all claims against a particular party such that that party is no longer a part of the ongoing case. In Tudhill Fin. v. Greenlaw, 61 Conn. App. 1, 8-9 (2000), however, the Connecticut Appellate Court refused to hear a plaintiff's appeal of interlocutory grant of motion to strike where plaintiff neither moved for judgment on the stricken count not attempted to preserve its appeal.
2See generally Conn. Prac. Book 10-39.
3See e.g., Conn. Prac. Book 61-2.
4See e.g., Conn. Prac. Book 61-4.
5 Conn. Prac. Book 10-44.
6Royce v. Westport, 183 Conn. 177, 178-179 (1981).
10 260 Conn. 766, 769 n.2 (2002).
12 See McQueeney v. Fithian, 1991 WI. 35569 (Conn. Super. Ct. Mar. 6, 1991) (Maloney, J.) (stating that the act of replacing allegations of a stricken count with a statement to the effect that appellate rights are being preserved is plainly incorrect.)
13See Good Humor Corp. v. Ricciuti, 160 Conn. 133, 136 (1970) (The choice is left to the plaintiff, but once he files an amended pleading the ruling on the [motion to strike] ceases to be an issue.)
14See St. Amand v. Kromish, 22 Conn. L. Rptr. 85 (April 17, 1998)(Flynn, J.) (determining that preservation of appellate rights under this scenario is accomplished by concurrently filing an amended pleading as to some of the counts and a motion for judgment in favor of the prevailing party as to the rest).
15It is important to note that the same steps need not be taken by defendants seeking to preserve appellate rights related to stricken special defenses. In Nowak v. Nowak, 175 Conn. 112, 118 (1978), the Connecticut Supreme Court recognized that filing new special defenses after previous special defenses had been stricken does not withdraw the defense previously filed.
17Id. at 717-718.
18The author recognizes that the steps taken in the hypothetical may have sufficed under Suffield. However, because the proper procedure in this regard is really undefined, the author would opt for the approach recommended above.
News & Events
Laura Zaino Joining UCONN Law's Moot Court Program Faculty
Halloran & Sage is pleased to announce that Laura Zaino is joining the University of Connecticut School of Law faculty as an adjunct professor in its interterm moot court program. Laura has a broad background in litigation, at both the appellate and trial court levels, and she will be using her skills to instruct first year students about oral and written advocacy. All first year law students are required to take a moot court class.
Laura is an alumnus of the University of Connecticut School of Law ('96).Firm Attorneys Judge Frederick Douglass Moot Court Competition
Halloran & Sage attorneys, in conjunction with the National Black Law Students Association (NBLSA)and the Assistant Regional Director of the Frederick Douglass Moot Court Northeast Region Competition, are pleased to participate as volunteer judges in the 2011 Frederick Douglass Moot Court Northeast Region Competition. The theme for this year's 36th Annual competition is, 1975-2011: Building a Legacy of Advocates to Fight For the Causes of Today.
The goal of the competition is to expose participants to realistic appellate advocacy experiences through oral argument and brief writing. Timothy McGuire is participating as a briefing judge and Attorneys Daniel Scapellati, John Farley, Brett Szczesny, Tracy Montalbano, Laura Pascale Zaino and Al DiVincentis are serving as oral judges. Over 100 teams from across the nation compete in six Regional Competitions. The top three teams from each region go onto compete at the national level during NBLSA's Annual Convention.H & S Announces New Partners and Counsel
The law firm of Halloran & Sage is pleased to announce that Alan Curto, Al DiVincentis and Brett Szczesny have been admitted as partners and Laura Pascale Zaino has been named counsel.
Alan is a member of the Administrative and Regulatory Group and graduated from the University of Connecticut School of Law in 1998. Al is a litigation attorney in the Construction Group and graduated from the University of Connecticut School of Law in 2000. Brett graduated from the Catholic University of America Columbus School of Law in 1997. Laura is a member of the Litigation Group. She graduated from the University of Connecticut School of Law in 1996.H & S Attorney Presented Awards to Local Judges
Halloran & Sage attorney Laura Pascale Zaino presented Judges John M. Walker, Jr., Justice Joette Katz and Judge Thomas A. Bishop awards recognizing their involvement as panelists in a recent Appellate Advocacy discussion presented by the CBA Young Lawyers Section Appellate Practice Committee and UConn Law School.
The panel of judges fielded questions from both Professor Paul Bader, director of the Moot Court at the University of Connecticut School of Law, and more than 200 first-year law students and YLS section members. They shared their expertise on a breadth of appellate advocacy topics, providing observations on how lawyers can best serve their clients in the court of appeals.
The judges weighed in on such issues as the importance of conciseness in brief writing and the best manner in which to handle judges' questions during oral arguments. Young lawyers and law students in attendance sought the panel's opinions on the role of technology in the appellate courtroom, how best to state the facts in a particularly complex case, and how judges weigh the arguments mounted in written briefs versus those presented in oral argument. Though the discussion and opinions covered much ground in the area of appellate advocacy, all three judges reiterated one significant point throughout: that preparation, confidence, and absolute mastery of the case record are the most important and powerful things an attorney can wield in their courtrooms.H & S Associates Appointed to CBA Young Lawyers Section Leadership Roles
Halloran & Sage associate has been appointed to leadership positions within the Young Lawyers Section of the Connecticut Bar Association.
Laura Pascale Zaino, an associate in the Litigation and Appellate Groups, is the Co-Chair of the Appellate Practice Committee.
The Firm encourages and fully supports our associates' efforts to become involved in local bar associations and other avenues for professional development. The Firm stands by the Young Lawyers Section's goals to promote justice, encourage public service, promote diversity and educate young lawyers and newly admitted practitioners, said Managing Partner William McGrath, Jr.
|Reported Cases||Representative Matter: CT Appellate Court Overturns Dismissal in Foreclosure Case and Bolsters Law Relating to Requirements of Legal Standing; In Deustche Bank National Trust Company, Trustee, v. Elizabeth Torres, the Connecticut Appellate Court dealt another blow to the attempts of borrowers to tighten the requirements of legal standing for a foreclosure action. In a decision officially released on March 25, 2014, the Appellate Court made clear that that a lender's mere allegation of holder status, together with production of the original note, was sufficient to constitute legal standing in the absence of any evidence presented to the contrary and in accord with the well-established line of Connecticut caselaw culminating in RMS Residential Properties, LLC v. Anna Miller, 303 Conn. 224 (2011). While the decision does not appear to fundamentally alter the status of Connecticut law, its release more than two years after RMS seems to be another sign of the strength and clarity of Connecticut's treatment of these issues.H & S Secures Reversal on Municipal Tax Ruling; In Gene Kasica v. Town of Columbia, SC 18968, Halloran & Sage (Laura Pascale Zaino and Michael Collins), on behalf of the Town of Columbia (the Town), secured a reversal by the Connecticut Supreme Court of a trial court judgment holding that municipal assessors did not have authority to tax partially completed construction. The plaintiff had challenged the Town of Columbia's assessor's valuations of his partially constructed, three story, plantation-style house for the 2008 and 2009 grand lists. In 2008, the assessor determined that construction was 35% complete and adjusted the property's assessment on the 2008 grand list to reflect that. In 2009, the assessor determined that construction was 40% complete and adjusted the property's assessment on the 2009 grand list to reflect that. The plaintiff appealed those valuations to the trial court. The trial court ruled in favor of the plaintiff, holding that the assessor could not legally increase the assessed value of the property based solely on the new construction because interim assessments are governed by 12-53a.... The trial court concluded that that statute governed the assessments at issue and held that [b]ecause an interim assessment under 12-53a (a) cannot commence until after new construction is completed, the assessor acted outside of [her] statutory mandate by performing an interim assessment when the property was [incomplete]. In reaching this conclusion, the trial court rejected the Town's argument that Conn. Gen. Stat. 12-55 governed the analysis and afforded the assessor with the authority to tax the partially completed construction. On appeal, the Town argued that the assessor had the authority to tax partially completed construction pursuant to Conn. Gen. Stat. 12-55. The Town also argued that the trial court improperly applied Conn. Gen. Stat. 12-53a to the facts of this case because 12-53a only applied to completed new construction. The Supreme Court agreed with the Town and reversed the trial court judgment. In doing so, the Supreme Court reaffirmed the conclusion it reached in 84 Century Ltd. Partnership v. Board of Tax Review, 207 Conn. 250, 262 (1988) that 12-55 provides assessors with broad authority to conduct interim assessments of real property and further determined, as a question of first impression, that that authority extends to taxing partially completed construction. It found support for this conclusion in the statutory scheme governing the taxation of real property in Connecticut which provides, among other things, that all improvements to building lots are taxable. Conn. Gen. Stat. 12-64. The partially completed construction improved the plaintiff's building lot and was, therefore, taxable. The Supreme Court rejected the plaintiff's argument, which echoed the trial court's determination, that Conn. Gen. Stat. 12-53a governed the analysis. Instead, it agreed with the Town that 12-53a was strictly limited to assessing and taxing completed new construction and that because the construction at issue was only partially completed at the time of the assessments, it had no bearing on the facts of this case. In sum, the Supreme Court has confirmed that partially completed construction is, and always has been, taxable in Connecticut. This important holding confirms the propriety of a longstanding practice by municipal assessors throughout the state to tax partially completed construction, as well as the income municipalities have generated by their doing so.H & S Secures Judgment for State Marshal; In Hill v. Ocwen Financial Group, et al, FST CV126013409S (May 21, 2013), the plaintiffs alleged that they were wrongfully evicted. They claimed that there was a bankruptcy stay in place which should have prevented the eviction, that certain personal belongings were destroyed, lost or stolen during the eviction and that they suffered emotional harm. They charged various lending institutions and the state marshal who executed the eviction with negligence, trespass, negligent infliction of emotional distress, punitive damages, and CUTPA violations. Halloran & Sage (H&S), represented by Laura Pascale Zaino and Rachel Fain, vigorously responded with a comprehensive motion to strike the entire Complaint against the marshal. Relying primarily on Connecticut General Statute 6-38a(b), which protects marshals from liability for negligence and trespass in performing their duties, H&S challenged all of the counts on grounds that, despite how they were titled, each sounded in negligence and/or trespass. H&S also argued, among other things, that there is no cause of action for punitive damages.; The trial court (Adams, J.) agreed that Connecticut General Statute 6-38a(b) was dispositive of the negligence, trespass, negligent infliction of emotional distress and CUTPA claims and granted the motion to strike those counts. The trial court also agreed that there is no cause of action for punitive damages but concluded the allegations in that count could be construed to state a claim for reckless conduct. As such, the court denied the motion to strike that count. Undeterred, H&S moved for and secured judgment on the stricken counts, answered the Complaint and raised a statute of limitations defense. H&S then moved for summary judgment on grounds that the plaintiffs' action was not commenced within the two year statute of limitations set forth in Conn. Gen. Stat. 52-584. The plaintiffs had alleged that the eviction occurred on March 26, 2009. The marshal maintained that the eviction occurred on February 25, 2010. The Complaint was dated March 26, 2012 and served on the marshal on March 30, 2012. Thus, regardless of whether the eviction occurred on March 26, 2009 or February 25, 2010, the action was not commenced within two years thereof. The trial court (Povodator, J.) agreed, granted the motion and disposed of the sole remaining claim against the marshal. 1The marshal argued that the emotional distress claims were not directed toward him.2In doing so, he recognized the marshal's argument that the NIED allegations were not directed to him and noted that [t]o the extent Freedman is a target, the claims of negligence must fail.3At oral argument, plaintiffs' counsel conceded that the March 26, 2009 date was probably inaccurate. However, he did not confirm that February 25, 2010 date the marshal espoused and attempted to establish through the submission of evidence was correct. The trial court did not resolve this apparent conflict because it did not have to. Willamette Management Associates, Inc. v. Palczynski; Halloran & Sage represented the plaintiff in a breach of contract action against the defendant and secured a judgment in the plaintiff's favor following a hearing in damages. The defendant appealed and the Appellate Court affirmed the judgment. The defendant's first argument was procedural. The plaintiff had filed an amended complaint at the direction of the court after discovering a scrivener's error regarding the return date. The defendant, who had been defaulted for failure to plead to that point, attempted to file an answer which the trial court refused. On appeal, she argued that the amendment conferred upon her the right to plead, notwithstanding the default. The Appellate Court disagreed because the amendment served merely to correct the return date. The defendant's second argument related to the propriety of the trial court's enforcement of the original contract between the parties, as opposed to a second agreement drafted after the defendant had breached the original. The defendant argued that the second agreement was the only enforceable agreement because of its complete integration clause stating that it superseded any prior writings. The Appellate Court disagreed, finding the subsequent agreement was not supported by consideration because it was nothing more than a promise to do something the promisor was already legally obligated to do. The plaintiff, a purchaser of land, brought a claim for negligent misrepresentation against the sellers and their agent... Sawicki v. New Britain General Hosp.; This certified appeal involved juror misconduct and the need for a new trial when the record supported conclusion that it was probable that one or more jurors viewed the evidence in an unfair and prejudicial manner.Successful Outcome/ Representative Reported Decision: Picco et al. v. Town of Voluntown, et al, Conn.(2010); The first named plaintiff claimed to have been injured after a portion of a tree fell on top of her while she was watching a soccer game at a field she claimed was owned, maintained and/or controlled by the town of Voluntown and/or its Board of Education. As such, she, her husband and two children brought a lawsuit against the town of Voluntown and certain named town officials and the Board of Education of the town of Voluntown and certain named board officials. The seventy count complaint purported to state claims sounding in negligence, nuisance, loss of consortium and bystander emotional distress. Halloran & Sage represented the town and its officials. At the trial court level, Halloran & Sage moved to strike all of the plaintiffs' claims against the town, asserting that they were barred by the doctrine of governmental immunity. At oral argument before the trial court, the plaintiffs conceded that the motion to strike should be granted on all counts except those alleging nuisance. Thereafter, the trial court concluded that the nuisance claims were likewise barred because the plaintiffs did not allege any facts indicating that the town, by any positive act, created the alleged nuisance. The trial court entered judgment accordingly. The plaintiffs then appealed and, after transferring the case to itself, the Connecticut Supreme Court affirmed the trial court's judgment. In doing so, it analyzed and interpreted the language of Connecticut General Statute 52-557n(a)(1)(c), a section of the statute it had not previously had occasion to review. The Connecticut Supreme Court specifically concluded that the plain language of that section clearly and unambiguously precludes liability in nuisance against a municipal defendant unless the alleged nuisance was created by a positive act of the defendant. Thus, the plaintiffs' failure to allege any positive act of creation in relation to their claims was fatally defective. Decorso v. Calderaro; The plaintiff, a commercial tenant under a lease, brought an action against her landlord, the attorney who represented the landlord and a state marshal, regarding the execution of an eviction. Halloran & Sage represented the marshal and obtained a summary judgment in his favor in the trial court which the plaintiff then appealed. The Appellate Court affirmed the trial court's judgment. Procedurally, the Court ruled that where a plaintiff does not replead a stricken count of a complaint and later proceedings dispose of the action, the court has jurisdiction over the appeal. Substantively, the Court ruled that there was no stay of execution in place when the plaintiff appealed from the judgment of possession. Latex Foam Intern. Holdings, Inc. v. Richard N. Goldman & Co., 2007 WL 447916 (Conn. Super. Ct. January 26, 2007)(Langenbach, J.); The Superior Court, Complex Litigation Docket, granted summary judgment on all claims against the defendant, an insurance brokerage company which had provided a limited inspection service for the purpose of determining whether the insured, a large latex foam mattress manufacturer, could lower its property insurance premiums by upgrading the building's existing sprinkler system. After the factory suffered a $38 million fire loss, the property insurance carriers who paid the loss brought subrogation claims against the brokerage company and inspector, alleging that they failed to instruct the insured to install fire sprinklers internally in the mattress dryer. The Court held that the broker had no legal duty to make such recommendations, and dismissed all claims, including negligence and contract claims. Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005); The plaintiff was injured while snowtubing at the defendant's facility. Before he was allowed to participate, he signed a release and waiver agreement exculpating the defendant for liability from any and all claims, including those involving the defendant's own negligence. The Supreme Court held, in a divided en banc opinion, that although the release was properly drafted, it was not enforceable because it violated public policy. Kramer v. Petisi, 91 Conn. App. 26, 879 A.2d 526 (2005); The plaintiff, a purchaser of land, brought a claim for negligent misrepresentation against the sellers and their agent, predicated on her claim that they negligently misrepresented the property boundaries. The plaintiff, however, did not obtain a survey of the land despite the advice to do so. The Appellate Court upheld a jury verdict in favor of the defendents, concluding that the failre to obtain a survey property formed the basis for a comparative negligence defense to the claim of negligent misrepresentation. Bloom v. Gershon, 271 Conn. 96, 856 A.2d 335 (2004); This case involved a procedural question - The Connecticut Supreme Court determined that the claims commissioner does not have jurisdiction to waive the State's sovereign immunity and grant a claimant permission to file apportionment complaint. Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004); This case resolved a longstanding procedural question regarding apportionment complaints. Although we lost, it is still significant. Supreme Court decided the 120 day provision for filing apportionment complaints is mandatory, not directory. Weigold v. Patel, 81 Conn. App. 347, 840 A.2d 19, cert. denied 268 Conn. 918, 847 A.2d 314 (2004); The plaintiff's decedent was killed in an automobile accident caused by a psychiatric patient who fell asleep at the wheel. The plaintiff alleged that the medication prescribed to the patient caused her to fall asleep. The Connecticut Appellate Court held that a psychiatrist owes no duty of care to the public to warn a patient of the danger of operating a motor vehicle while taking medication.|
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