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MERINDA J. SEMPEY v. STAMFORD HOSPITAL
(AC 39221)
DiPentima, C. J., and Lavine and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages from the defendant in connection
with the alleged wrongful termination of her employment by the defen-
dant. The plaintiff initially had brought a claim before the Commission
on Human Rights and Opportunities, which issued a release of jurisdic-
tion that required the plaintiff to commence an action alleging discrimi-
nation under the Connecticut Fair Employment Practices Act (§ 46a-51
et seq.) in the Superior Court within ninety days. Nine days later, the
plaintiff commenced an action alleging wrongful discharge in violation
of public policy, negligent infliction of emotional distress and violations
of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et
seq.). After the trial court granted a motion to strike filed by the defen-
dant, the plaintiff filed an amended substitute complaint alleging claims
in three counts for race discrimination, certain tortious conduct involv-
ing her alleged wrongful termination and violations of CUTPA. The
defendant filed a motion to strike all three counts of the amended
substitute complaint and a separate motion to dismiss the first count
alleging race discrimination for lack of subject matter jurisdiction. The
court summarily granted both motions, dismissed the case and issued
two memoranda of decision, which reflected that the court granted both
motions as to all three counts. From the judgment rendered thereon,
the plaintiff appealed to this court. Held:
1. The plaintiff could not prevail on her claim that the trial court erred by
considering the defendant’s motion to dismiss while the defendant’s
second motion to strike was pending and before the time to file a
substitute complaint had passed; the requirement of subject matter
jurisdiction cannot be waived by any party, may be raised at any stage
of the proceedings and must be immediately acted on by the court, and
given that the defendant moved to dismiss count one of the amended
substitute complaint for lack of subject matter jurisdiction due to the
plaintiff’s failure to bring her claim of race discrimination within ninety
days of the commission’s release of jurisdiction, that the plaintiff’s origi-
nal complaint, which was timely, did not allege race discrimination, and
that such a claim was alleged only in the amended and amended substi-
tute complaints, which were filed outside the ninety day time limit, the
court’s consideration of the motion to dismiss count one was proper.
2. The trial court properly dismissed count one of the amended substitute
complaint; contrary to the plaintiff’s claim, the allegations of the original
complaint did not sufficiently state a claim of race discrimination so as
to put the defendant on notice of such a claim, and, therefore, the
plaintiff’s claim of discrimination on the basis of race, as alleged in
the amended substitute complaint, did not relate back to the original
complaint and was untimely.
3. The trial court erred in dismissing counts two and three of the plaintiff’s
amended substitute complaint without affording the plaintiff the oppor-
tunity either to defend herself against a motion to dismiss those counts
or to replead the stricken counts: because the defendant filed a motion
to dismiss only as to count one, which alleged race discrimination, the
trial court, which misinterpreted the scope of the defendant’s motion
to dismiss, lacked the authority to dismiss counts two and three when the
defendant did not seek the dismissal of those counts, and the defendant’s
claim that the court’s error was harmless was unavailing, as the court’s
decision was not premised on preclusion or framed as a response to
repetitive or futile pleading, and there was neither a showing by the
defendant nor a conclusion by the court that the plaintiff could not
demonstrate that repleading would not rectify the stricken counts;
accordingly, this court’s reversal of the dismissal of counts two and
three restored the case to the trial court docket, and the plaintiff had
to be given the opportunity to replead.
Argued September 15, 2017—officially released April 3, 2018
Procedural History
Action to recover damages for, inter alia, the plain-
tiff’s alleged wrongful termination, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the court, Hon. Richard P. Gilardi,
judge trial referee, granted the defendant’s motion to
strike; thereafter, the court granted the defendant’s sec-
ond motion to strike; subsequently, the court granted
the defendant’s motion to dismiss and rendered a judg-
ment of dismissal, from which the plaintiff appealed to
this court. Reversed in part; further proceedings.
Laurence V. Parnoff, with whom, on the brief, was
Laurence V. Parnoff, Jr., for the appellant (plaintiff).
Justin E. Theriault, with whom, on the brief, was
Beverly W. Garofalo, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Merinda J. Sempey,
appeals from the judgment of the trial court dismissing
her case against the defendant, Stamford Hospital. On
appeal, the plaintiff claims that the court erred by (1)
granting the defendant’s motion to dismiss count one
of the amended substitute complaint, and (2) dismissing
the matter in its entirety when the defendant had moved
to dismiss only count one. Although we disagree that
the court erred in granting the motion to dismiss count
one of the amended substitute complaint, we agree that
the court erred in dismissing counts two and three.
Accordingly, we reverse the judgment of the trial court
as to counts two and three of the amended substitute
complaint and remand the case for further proceedings;
we affirm the judgment in all other respects.
The following facts and procedural history are rele-
vant to our consideration of this matter. The plaintiff
was a nurse employed at will by the defendant from
November 9, 1990, to September 30, 2013. The defen-
dant terminated the plaintiff’s employment for allegedly
violating patient privacy rules outlined in its
employee manual.
Pursuant to General Statutes § 46a-82 et seq., the
plaintiff brought a claim before the Commission on
Human Rights and Opportunities (commission) which,
on August 25, 2014, issued a release of jurisdiction pur-
suant to General Statutes § 46a-100 et seq. That release
required the plaintiff to commence an action alleging
discrimination under the Connecticut Fair Employment
Practices Act (act), General Statutes § 46a-51 et seq.,
in the Superior Court within ninety days. Nine days
later, on September 3, 2014, the plaintiff commenced a
timely action against the defendant, but did not allege
a claim of discrimination in violation of the act. Instead,
the plaintiff alleged (1) wrongful discharge in violation
of public policy, (2) negligent infliction of emotional
distress and (3) violations of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq.
On November 26, 2014, the defendant moved to strike
all three counts of the original complaint. The court
granted that motion over the plaintiff’s opposition on
August 6, 2015. Thereafter, on August 20, 2015, the plain-
tiff filed a substitute complaint, which she later
amended on September 18, 2015 (amended substitute
complaint). In the amended substitute complaint, the
plaintiff alleged three counts: race discrimination
(count one), a tortious conduct claim, specifically,
wrongful discharge involving defamation and breach of
an implied employment contract causing the negligent
infliction of emotional distress (count two), and viola-
tions of CUTPA predicated upon the first two counts
(count three).
On September 21, 2015, the defendant moved to strike
all three counts of the amended substitute complaint
and, on the same day, filed a separate motion to dismiss
count one for lack of subject matter jurisdiction. The
plaintiff opposed both motions. Following argument,
the court summarily granted both motions on January
6, 2016, and dismissed the case. On January 12, 2016,
the plaintiff requested memoranda of decision, which
the court issued on April 28, 2016. In those memoranda,
which track one another closely in their legal conclu-
sions, the court determined that (1) it lacked subject
matter jurisdiction over the race discrimination claim,
(2) the termination of an at-will employee did not consti-
tute a violation of public policy or negligent infliction of
emotional distress and (3) an employment relationship
does not implicate trade or commerce as required by
CUTPA. The memoranda reflect that the court granted
both motions as to all three counts and rendered judg-
ment for the defendant accordingly. On May 17, 2016,
the plaintiff filed her appeal from the dismissal of the
amended substitute complaint.1
On appeal, the plaintiff claims that the court erred
in dismissing the case in two ways. The plaintiff argues
that the court erred by (1) considering the defendant’s
motion to dismiss while the defendant’s second motion
to strike was pending and before the time to file a
substitute complaint had passed and (2) dismissing the
matter in its entirety even though the defendant had
moved to dismiss only count one. The defendant count-
ers that (1) a motion to dismiss for lack of subject
matter jurisdiction may be filed and resolved at any
time, (2) the court has broad discretion to manage
cases, including entering judgment upon a question of
law, and (3) the error, if any, was harmless. We conclude
that the court properly dismissed count one of the
amended substitute complaint but erred in dismissing
the remaining two counts.
I
The plaintiff first claims that the court erred in consid-
ering, and granting, the defendant’s motion to dismiss
after the defendant had filed the second motion to strike
and before the fifteen day period for filing a substitute
complaint had expired.2 Specifically, the plaintiff con-
tends that (1) by filing its second motion to strike the
amended substitute complaint, the defendant had to
wait until the plaintiff was able to replead to file a
motion to dismiss, and (2) the court had subject matter
jurisdiction over count one of the amended substitute
complaint. We disagree that the court erred in dismiss-
ing count one.
A
The plaintiff argues that by filing the second motion
to strike, the defendant had to wait until the plaintiff
was able to replead to file a motion to dismiss. This
contention is without merit.
Practice Book § 10-33 provides that ‘‘[a]ny claim of
lack of jurisdiction over the subject matter cannot be
waived; and whenever it is found after suggestion of
the parties or otherwise that the court lacks jurisdiction
of the subject matter, the judicial authority shall dismiss
the action.’’ (Emphasis added.) Indeed, ‘‘[a] court lacks
discretion to consider the merits of a case over which
it is without jurisdiction. . . . The objection of want
of jurisdiction may be made at any time . . . . The
requirement of subject matter jurisdiction cannot be
waived by any party and can be raised at any stage in
the proceedings.’’ (Emphasis added; internal quotation
marks omitted.) Fairfield Merrittview Ltd. Partner-
ship v. Norwalk, 320 Conn. 535, 548, 133 A.3d 140 (2016).
‘‘It is axiomatic that once the issue of subject matter
jurisdiction is raised, it must be immediately acted upon
by the court. Statewide Grievance Committee v. Roz-
bicki, 211 Conn. 232, 245, 558 A.2d 986 (1989); Cahill
v. Board of Education, 198 Conn. 229, 238, 502 A.2d
410 (1985). . . . [A]s soon as the jurisdiction of the
court to decide an issue is called into question, all other
action in the case must come to a halt . . . .’’ Gurliacci
v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).
Here, the defendant moved to dismiss count one of
the amended substitute complaint for lack of subject
matter jurisdiction. In particular, the defendant argued
that the court lacked jurisdiction over the subject mat-
ter of count one because the plaintiff failed to bring
her claim of race discrimination within ninety days of
the commission’s release of jurisdiction pursuant to
§ 46a-101.3 It is indisputable that the plaintiff’s original
complaint did not allege race discrimination in violation
of the act, but that the amended and amended substitute
complaints, which were filed outside the ninety day
time limit, did. Accordingly, the court’s consideration
of the defendant’s motion to dismiss count one of the
amended substitute complaint for lack of subject matter
jurisdiction was proper.
B
Alternatively, the plaintiff contends that the court
erred in granting the motion to dismiss count one of
the amended substitute complaint on its merits. The
parties agree that the plaintiff commenced the original
action well within the ninety day time limit. Likewise,
there is no dispute that the plaintiff’s substitute and
amended substitute complaints fall outside that same
time limit. The issue, therefore, is whether the plaintiff’s
original complaint sufficiently states a claim of race
discrimination. If it does, the discrimination claim is
timely; if it does not, the discrimination claim is time
barred. The plaintiff contends that although the allega-
tions in her original complaint, filed September 8, 2014,
did not explicitly allege a claim of race discrimination,
they were nonetheless sufficient to allege a violation
of the act and, as a result, the relation back doctrine
renders her claim timely. We are not persuaded.
We begin our analysis of this contention by setting
forth applicable legal principles. ‘‘A determination
regarding a trial court’s subject matter jurisdiction is a
question of law. When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Machado
v. Taylor, 326 Conn. 396, 403, 163 A.3d 558 (2017). ‘‘Our
review of a trial court’s ruling on a motion to dismiss
is de novo and we indulge every presumption favoring
jurisdiction.’’ Pacific Ins. Co., Ltd. v. Champion Steel,
LLC, 323 Conn. 254, 259, 146 A.3d 975 (2016).
‘‘Our review of the applicability of the relation back
doctrine is plenary.’’ Commission on Human Rights &
Opportunities v. Hartford, 138 Conn. App. 141, 169, 50
A.3d 917, cert. denied, 307 Conn. 929, 55 A.3d 570 (2012).
‘‘The relation back doctrine has been well established
by [our Supreme Court]. . . . It is proper to amplify
or expand what has already been alleged in support of
a cause of action, provided the identity of the cause of
action remains substantially the same, but [when] an
entirely new and different factual situation is presented,
a new and different cause of action is stated. . . .
‘‘Our relation back doctrine provides that an amend-
ment relates back when the original complaint has given
the party fair notice that a claim is being asserted stem-
ming from a particular transaction or occurrence,
thereby serving the objectives of our statute of limita-
tions, namely, to protect parties from having to defend
against stale claims . . . . [I]n the cases in which we
have determined that an amendment does not relate
back to an earlier pleading, the amendment presented
different issues or depended on different factual cir-
cumstances rather than merely amplifying or expanding
upon previous allegations.’’ (Citations omitted; internal
quotation marks omitted.) Briere v. Greater Hartford
Orthopedic Group, P.C., 325 Conn. 198, 207–208, 157
A.3d 70 (2017).
‘‘In our review of the plaintiff’s claim, we must evalu-
ate the allegations in the complaint. The interpretation
of pleadings is always a question of law for the court.
. . . In addition, [t]he allegations of the complaint must
be given such reasonable construction as will give effect
to [it] in conformity with the general theory which it
was intended to follow, and do substantial justice
between the parties. . . . It is axiomatic that the par-
ties are bound by their pleadings.’’ (Citation omitted;
internal quotation marks omitted.) O’Halloran v. Char-
lotte Hungerford Hospital, 63 Conn. App. 460, 463, 776
A.2d 514 (2001).
Despite our expansive reading of the original com-
plaint, we cannot divine from it a claim of race discrimi-
nation, and it does not put the defendant on notice of
such a claim. The plaintiff concedes that her allegations
are not explicit, but avers that the specter of discrimina-
tion lurks over count one. She cites to one specific
allegation in her original complaint, paragraph eleven.
There, she alleged that her suspension and termination
were ‘‘wrongful and also merely a pretext to remove
plaintiff from her employment position in order to allow
another person to fill that position.’’ She refers to no
other language in the original complaint to support
her contention.4
The inadequate allegations in the original complaint
become all the more obvious when they are read along-
side those in the amended substitute complaint. In that
version, paragraph eleven states: ‘‘Defendant’s sus-
pending and subsequent terminating of plaintiff through
its agent, plaintiff’s supervisor, was wrongful and also
merely a pretext to remove plaintiff from her employ-
ment position due to her race in order to allow another
person, of the same race as plaintiff’s supervisor, to
fill that position.’’ (Emphasis added.) Although that
cause of action may rely on the same underlying facts,
it is a new and separate issue entirely.
Indeed, even though the plaintiff now argues on
appeal that her amended substitute complaint relates
back to her original complaint,5 her other trial court
filings make it clear that it does not—and that she did
not intend it to. The plaintiff specifically argued to the
trial court that the allegations in count one of the origi-
nal complaint alleged a common-law claim for wrongful
discharge of an at-will employee in violation of public
policy, not a claim of race discrimination. In her memo-
randum in opposition to the defendant’s motion to
strike, the plaintiff stated the following: ‘‘Defendant’s
motion seeks to misdirect the court to see plaintiff’s
tort claim for wrongful termination6 as [a] . . . § 46a-
101 claim which is not anywhere alleged by plaintiff.
. . . Plaintiff’s [substitute] complaint is not asserting
a racial discrimination claim under [the act]. Plain-
tiff’s inclusion of the additional facts stated in the
amended [substitute] complaint about discrimination
based on race, the [commission] process and release
thereof are just allegations in further support of her
wrongful termination claim and facts stating viola-
tions of public policy.’’ (Emphasis altered; footnote
added and omitted.)
For those reasons, we conclude that the plaintiff’s
claim of discrimination on the basis of race, as alleged
in her amended substitute complaint, does not relate
back to her original complaint and is, therefore,
untimely.7 Accordingly, we agree that the court properly
dismissed count one of the amended substitute com-
plaint. We do not determine, however, whether the
plaintiff’s failure to bring a discrimination claim within
ninety days of receiving the release of jurisdiction from
the commission deprived the court of subject matter
jurisdiction. The plaintiff presents no argument at all
as to whether the time limit of § 46a-101 (e) is either
mandatory or jurisdictional. Furthermore, there is no
claim of waiver, consent, or equitable tolling. Accord-
ingly, we conclude that the court properly dismissed
the race discrimination claim regardless of whether the
time limit is jurisdictional.8 See Wright v. Teamsters
Local 559, 123 Conn. App. 1, 9, 1 A.3d 207 (2010), citing
Williams v. Commission on Human Rights & Opportu-
nities, 257 Conn. 258, 284, 777 A.2d 645 (‘‘[I]f a time
requirement is deemed to be mandatory, it must be
complied with, absent such factors as consent, waiver
or equitable tolling. Thus a complaint that is not filed
within the mandatory time requirement is dismissible
unless waiver, consent, or some other compelling equi-
table tolling doctrine applies.’’), aff’d after remand, 67
Conn. App. 316, 786 A.2d 1283 (2001). Thus, the court
did not err in dismissing count one of the amended
substitute complaint.
II
The plaintiff next claims that the court erred by dis-
missing counts two and three of the amended substitute
complaint, and rendering judgment thereon, even
though the defendant moved to dismiss only count one
and the time to replead the stricken counts had not yet
passed. Because we conclude that the court misinter-
preted the defendant’s motion to dismiss and lacked
the authority to dismiss counts two and three of the
amended substitute complaint, we agree with the plain-
tiff that the court committed reversible error.
As a preliminary matter, we must determine our stan-
dard of review. In the somewhat unusual circumstances
of this case, the parties differ as to the appropriate
inquiry. The plaintiff argues that, because the court
resolved the case, albeit erroneously, upon a motion to
dismiss, our review is plenary. See Pacific Ins. Co.,
Ltd. v. Champion Steel, LLC, supra, 323 Conn. 259
(‘‘[o]ur review of a trial court’s ruling on a motion to
dismiss is de novo and we indulge every presumption
favoring jurisdiction’’). The defendant counters that the
trial court’s actions implicate its case management
authority, which we review for abuse of discretion. See
Krevis v. Bridgeport, 262 Conn. 813, 818–19, 817 A.2d
628 (2003) (‘‘[w]e review case management decisions
for abuse of discretion, giving [trial] courts wide lati-
tude’’ [internal quotation marks omitted]).
Although the plaintiff’s argument oversimplifies the
history of this case, we agree with her conclusion that
our review is plenary. The defendant imputes to the
court a motive not reflected in the record. The court
did not explicitly invoke its authority or exercise its
discretion in dismissing the plaintiff’s case but, rather,
apparently misread the defendant’s motion to have been
directed at the amended substitute complaint in its
entirety. We conclude, therefore, that this case is most
closely analogous to those cases where the court misin-
terprets the pleadings. In such cases, our review is
plenary. See Boone v. William W. Backus Hospital, 272
Conn. 551, 559, 864 A.2d 1 (2005) (‘‘[T]he interpretation
of pleadings is always a question of law for the court
. . . . Our review of the trial court’s interpretation of
the pleadings therefore is plenary.’’ [Internal quotation
marks omitted.]); O’Halloran v. Charlotte Hungerford
Hospital, supra, 63 Conn. App. 463. Specifically, in this
case, our review turns on whether the court had the
authority to dismiss counts two and three of the
amended substitute complaint. See Heim v. California
Federal Bank, 78 Conn. App. 351, 359, 828 A.2d 129
(eschewing traditional standard of review in favor of
inquiry into ‘‘whether the court had ‘statutory or legal
authority’ to strike’’ particular count in absence of
motion), cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).
With that in mind, we turn to the legal principles
governing motions to dismiss and motions to strike.
‘‘There is a significant difference between asserting that
a plaintiff cannot state a cause of action and asserting
that a plaintiff has not stated a cause of action, and
therein lies the distinction between the motion to dis-
miss and the motion to strike. . . . A motion to dismiss
does not test the sufficiency of a cause of action and
should not be granted on other than jurisdictional
grounds. . . . As our Supreme Court has explained: A
motion to dismiss is not a proper vehicle for an attack
on the sufficiency of a pleading. . . . The distinction
between the motion to dismiss and the motion to strike
is not merely semantic. If a motion to dismiss is granted,
the case is terminated, save for an appeal from that
ruling. . . . The granting of a motion to strike, how-
ever, ordinarily is not a final judgment because our
rules of practice afford a party a right to amend deficient
pleadings. See Practice Book § 10-44.
‘‘That critical distinction implicates a fundamental
policy consideration in this state. Connecticut law
repeatedly has expressed a policy preference to bring
about a trial on the merits of a dispute whenever possi-
ble and to secure for the litigant his or her day in court.
. . . Our practice does not favor the termination of
proceedings without a determination of the merits of
the controversy where that can be brought about with
due regard to necessary rules of procedure. . . . For
that reason, [a] trial court should make every effort to
adjudicate the substantive controversy before it, and,
where practicable, should decide a procedural issue
so as not to preclude hearing the merits of [a case].’’
(Citations omitted; emphasis in original; footnotes omit-
ted; internal quotation marks omitted.) Egri v. Foisie,
83 Conn. App. 243, 247–50, 848 A.2d 1266, cert. denied,
271 Conn. 931, 859 A.2d 930 (2004).
A
We first consider whether the court erred in granting
the defendant’s motion to dismiss as to counts two and
three of the amended substitute complaint. In part I of
this opinion, we determined that the court properly
granted the defendant’s motion to dismiss count one.
The record indicates that the defendant did not move to
dismiss counts two and three. Accordingly, we conclude
that the court erred in granting the motion to dismiss
as to counts two and three of the amended substitute
complaint, and rendering final judgment thereon.
The following additional facts illuminate this issue.
The defendant filed two motions on the same day, Sep-
tember 21, 2015. First, the defendant filed a motion to
strike the amended substitute complaint in its entirety.
Shortly thereafter, the defendant filed a motion to dis-
miss count one of the amended substitute complaint.
The plaintiff opposed both motions. After a hearing
in December, 2015, the court issued a summary order
granting both motions in January, 2016, and dismissed
the case. The plaintiff requested written decisions, cit-
ing Practice Book §§ 10-43 and 64-1.9 The court issued
two memoranda, one for each motion. In its memoran-
dum of decision with respect to the motion to dismiss,
the court stated: ‘‘This memorandum of decision is in
response to a request by the plaintiff, pursuant to [§ 64-
1], which states that the court submit a written basis
for sustaining the defendant’s motion to dismiss all
three counts of the plaintiff’s amended [substitute] com-
plaint . . . . The motion to dismiss filed by the defen-
dant was to dismiss the complaint for lack of subject
matter jurisdiction. . . . The defendant . . . had
moved to dismiss all three counts of the plaintiff’s
amended [substitute] complaint, which was granted by
this court on January 6, 2016.’’ In fact, the defendant’s
motion to dismiss moved only that ‘‘the first count of
the amended [substitute] complaint be dismissed with
prejudice for lack of subject matter jurisdiction.’’10
With some exceptions, trial courts generally lack the
authority to act on their own. ‘‘As our Supreme Court
has explained, due to the adversarial nature of our judi-
cial system, [t]he court’s function is generally limited
to adjudicating the issues raised by the parties on the
proof they have presented and applying appropriate
procedural sanctions on motion of a party.’’ (Emphasis
altered; internal quotation marks omitted.) Somers v.
Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008).
‘‘Pleadings have their place in our system of jurispru-
dence. While they are not held to the strict and artificial
standard that once prevailed, we still cling to the belief,
even in these iconoclastic days, that no orderly adminis-
tration of justice is possible without them. . . . Our
rules of practice contain provisions for the framing of
issues. . . . Our rules of practice include Practice
Book § 10-39 et seq., which governs motions to strike;
its proscriptions for its purpose and use are carefully
set out. Given what may be the legal consequence to
a party against whom such a motion is granted, the
movants should be required to follow our rules of prac-
tice, especially as to the party or parties against whom
it is directed. We cannot say that it is an unreasonable
practice to condition the right to the remedy sought by
a movant on a motion to strike on the requirement that
the movant plead for that relief in a manner so that all
parties directly concerned know that they are the object
of such requested relief. . . . We are mindful that it is
a fundamental tenet of due process that persons directly
concerned with the result of an adjudication be given
reasonable notice and the opportunity to present their
claims of defenses.’’ (Citations omitted; footnotes omit-
ted; internal quotation marks omitted.) Heim v. Califor-
nia Federal Bank, supra, 78 Conn. App. 363–64. This
logic applies equally to motions to dismiss. Additionally,
‘‘the rules of practice require a party to file a written
motion to trigger the trial court’s determination of a
dispositive question of law.’’ Vertex, Inc. v. Waterbury,
278 Conn. 557, 564, 898 A.2d 178 (2006).
To that end, even in the cases where a trial court
exercises its authority to manage cases outside the rules
of practice, our Supreme Court has held that the court
must provide certain safeguards to the party adversely
affected. ‘‘The trial court’s broad case management
authority simply does not extend so far as to permit
the court to: (1) initiate the pretrial disposition of a
claim based on the court’s perception of its legal insuffi-
ciency; and (2) proceed to consider such disposition
(a) in disregard of the procedural protections provided
in our rules of practice without the agreement of coun-
sel and (b) without notice to the parties and a reason-
able opportunity for the plaintiff to oppose the
disposition of its claims.’’ Id., 569. We consistently have
reversed courts who do not afford nonmovants these
safeguards.11
Here, the court lacked the authority to dismiss the
entire case. The court appears to have misread the
motion to dismiss to have sought the dismissal of counts
two and three in addition to count one. The defendant
concedes that this is ‘‘somewhat unorthodox’’ but
argues that, because the court has the authority to dis-
miss an action where it would be dilatory, unjust and
useless to allow the plaintiff to replead, it was not error
to dismiss this case. Alternatively, the defendant main-
tains that the plaintiff’s postjudgment complaint, the
second substitute complaint, demonstrates that the
court’s error is harmless because, ‘‘as she has done
throughout the two and one-half years of this action,
[the plaintiff] asserted the identical causes of action
that the trial court has twice held to be legally deficient.’’
It certainly is true that ‘‘[where] the plaintiff is unable
to demonstrate that anything could be added to the
complaint by way of amendment that would avoid the
deficiencies in the original complaint, the granting of
a motion to dismiss has been found harmless despite
its procedural impropriety.’’ Egri v. Foisie, supra, 83
Conn. App. 250 n.10, citing McCutcheon & Burr, Inc.
v. Berman, 218 Conn. 512, 528, 590 A.2d 438 (1991).
The problem with the defendant’s arguments, how-
ever, is that the court’s decision was not premised on
preclusion or framed as a response to repetitive or futile
pleading. That is, there was neither a showing by the
defendant nor conclusion by the court that the plaintiff
could not demonstrate that repleading would not rectify
the stricken counts. Like the trial court in Heim v.
California Federal Bank, supra, 78 Conn. App. 363–64,
the trial court in the present case simply was mistaken
as to the scope of the defendant’s motion. As a direct
consequence of this mistake, the court concluded that
because the plaintiff had not stated a claim in counts
two and three, the plaintiff could not state a claim.
That is exactly the violation of strong policy this court
warned against in Egri v. Foisie, supra, 83 Conn. App.
247–50.12 This court did not condone it then and we
cannot condone it now. The plaintiff should not be
deprived of her procedural rights without warning or
reason; the defendant should not now be allowed to
benefit from a motion it did not make.13 We, therefore,
decline to affirm the judgment of dismissal of counts
two and three on the grounds the defendant suggests.
B
Having concluded that the court erred in dismissing
counts two and three of the amended substitute com-
plaint, we must decide how best to resolve this proce-
dural predicament. For the reasons stated herein, we
determine that the plaintiff should be given the opportu-
nity to replead.
‘‘The granting of a motion to strike . . . ordinarily
is not a final judgment because our rules of practice
afford a party a right to amend deficient pleadings. See
Practice Book § 10-44.’’ Egri v. Foisie, supra, 83 Conn.
App. 249. ‘‘If a judgment is set aside on appeal, its effect
is destroyed and the parties are in the same condition
as before it was rendered.’’ Bauer v. Waste Management
of Connecticut, Inc., 239 Conn. 515, 523, 686 A.2d 481
(1996), citing W. Maltbie, Connecticut Appellate Proce-
dure (2d Ed. 1957) § 345. Accordingly, our reversal of
the court’s dismissal of counts two and three restores
this case to the trial court docket.
In conclusion, therefore, the trial court properly dis-
missed count one of the amended substitute complaint
as untimely. The court, however, in the absence of a
motion to dismiss, lacked the authority to dismiss the
second and third counts of the amended substitute com-
plaint without affording the plaintiff the opportunity
either to defend herself against a motion to dismiss
those counts or to replead the stricken counts.
The judgment is reversed as to the dismissal of counts
two and three of the amended substitute complaint, and
the case is remanded for further proceedings consistent
with this opinion. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
Notwithstanding the January 6, 2016 judgment dismissing the case in its
entirety, on May 11, 2016, the plaintiff filed a second substitute complaint
alleging (1) tortious conduct, (2) race discrimination and (3) a violation of
CUTPA. At the time the second substitute complaint was filed, however,
there was no action pending before the trial court. Accordingly, although
the defendant moved to strike this complaint on May 23, 2016, the court
properly did not address either the complaint or the motion to strike it.
2
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 . . . or any count in a 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 . . . or count thereof. Nothing in this section shall dis-
pense with the requirements of Sections 61-3 or 61-4 of the appellate rules.’’
3
General Statutes § 46a-101 (e) provides, in relevant part: ‘‘Any action
brought by the complainant . . . shall be brought not later than ninety days
after the date of the receipt of the release from the commission.’’
4
For example, the initial complaint did not allege that the plaintiff was
in a protected class or that the adverse employment action occurred under
discriminatory circumstances. See, e.g., Jones v. Dept. of Children & Fami-
lies, 172 Conn. App. 14, 25, 158 A.3d 356 (2017) (‘‘[t]o establish a prima
facie case of [race] discrimination . . . the [plaintiff] must demonstrate
that [1] [she] is in the protected class; [2] [she] was qualified for the position;
[3] [she] suffered an adverse employment action; and [4] that the adverse
action occurred under circumstances giving rise to an inference of discrimi-
nation’’). We note that the only explicit mention of race is contained in
paragraph one of the initial complaint, where it is alleged that the plaintiff
is ‘‘a white, sixty-two (62) year old female . . . .’’
5
In her brief, the plaintiff argues that her claim is indeed one of discrimina-
tion on the basis of race in violation of the act: ‘‘The issue, then, regarding
the first count concerns the adequacy of the allegation . . . to state a claim
under [§§] 46a-101 (e) and 46-100.’’ We note also that the trial court deter-
mined, as a matter of law, that count one of the amended substitute complaint
alleged race discrimination.
6
‘‘[T]he doctrine of wrongful discharge . . . provides a common law
cause of action in tort for wrongful discharge ‘if the former employee can
prove a demonstrably improper reason for dismissal, a reason whose impro-
priety is derived from some important violation of public policy.’ ’’ (Emphasis
in original.) Tomlinson v. Board of Education, 226 Conn. 704, 729, 629 A.2d
333 (1993), quoting Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471,
475, 427 A.2d 385 (1980).
Although it is true that there is a strong public policy against discrimination
on the basis of race, the common-law tort of wrongful discharge is not
available to a plaintiff who alleges such discrimination. ‘‘A finding that
certain conduct contravenes public policy is not enough by itself to warrant
the creation of a contract remedy for wrongful dismissal by an employer.
The cases which have established a tort or contract remedy for employees
discharged for reasons violative of public policy have relied upon the fact
that in the context of their case the employee was otherwise without remedy
and that permitting the discharge to go unredressed would leave a valuable
social policy to go unvindicated.’’ (Emphasis added; internal quotation marks
omitted.) Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 648, 501
A.2d 1223 (1985). Because the act provides a specific remedy for employees
who have been discriminated against because of their race; General Statutes
§§ 46a-60 (a) (1) and 46a-100; the common-law tort is unavailable. See Burn-
ham v. Karl & Gelb, P.C., 252 Conn. 153, 159–60, 745 A.2d 178 (2000)
(adopting rule that plaintiff is precluded from bringing action for wrongful
discharge in violation of public policy where statutory remedy exists); Sulli-
van v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096
(1985) (holding that act requires all claims of workplace discrimination to
be brought before commission first).
7
The plaintiff also contends that the court erred in dismissing the first
count of the amended substitute complaint without permitting her the time
to amend her complaint. Because we conclude that any claim of discrimina-
tion on the basis of race would not relate back to the initial complaint and
necessarily would be untimely, we need not address this argument.
8
The court agreed with the defendant that the time limitation in § 46a-
101 (e) is jurisdictional. The plaintiff has not challenged this determination,
arguing instead that his claim is timely because it relates back. But see
Williams v. Commission on Human Rights & Opportunities, 257 Conn.
258, 277–78, 777 A.2d 645 (time limitations contained in antidiscrimination
statutes not necessarily jurisdictional; nonjurisdictional time limits are sub-
ject to waiver, consent and other equitable tolling doctrines), aff’d after
remand, 67 Conn. App. 316, 786 A.2d 1283 (2001). We acknowledge that our
Superior Court has been divided over this question. Compare Scott v. Dept.
of Transportation, Superior Court, judicial district of Hartford, Docket No.
CV-15-6060375-S (June 13, 2016) (62 Conn. L. Rptr. 637) (concluding after
survey of prior decisions that § 46a-101 [e] is not jurisdictional), with Lloyd
v. Connection, Inc., Superior Court, judicial district of New Haven, Docket
No. CV-11-6023491-S (December 21, 2011) (concluding that, consistent with
prior decisions, § 46a-101 [e] is jurisdictional). We choose not to answer
the question in this case.
9
Practice Book § 10-43 provides: ‘‘Whenever a motion to strike is filed
and more than one ground of decision is set up therein, the judicial authority,
in rendering the decision thereon, shall specify in writing the grounds upon
which that decision is based.’’
Practice Book § 64-1 provides, in relevant part: ‘‘(a) The trial court shall
state its decision either orally or in writing, in all of the following . . . in
making any . . . rulings that constitute a final judgment for purposes of
appeal under Section 61-1 . . . . The court’s decision shall encompass its
conclusion as to each claim of law raised by the parties and the factual
basis therefor.’’
10
The defendant’s motion to strike, on the other hand, moved that ‘‘the
court strike plaintiff’s amended [substitute] complaint in its entirety for
failure to state a claim upon which relief can be granted.’’ In a separate
memorandum, the court granted that motion and struck the entire amended
substitute complaint in addition to dismissing it.
11
See, e.g., Vertex, Inc. v. Waterbury, supra, 278 Conn. 564–65 (‘‘[t]he
rules of practice do not provide the trial court with authority to determine
dispositive questions of law in the absence of [a motion to strike or a motion
for summary judgment]’’); Bombero v. Bombero, 160 Conn. App. 118, 131,
125 A.3d 229 (2015) (‘‘the court improperly rendered judgment on the plain-
tiff’s claim when the plaintiff’s motion for summary judgment was limited
to the defendant’s counterclaim’’); Greene v. Keating, 156 Conn. App. 854,
861,115 A.3d 512 (2015) (‘‘the court acted in excess of its authority when
it raised and considered, sua sponte, a ground for summary judgment not
raised or briefed by the parties’’); Heim v. California Federal Bank, supra,
78 Conn. App. 361 (‘‘we consider the court’s sua sponte [striking] of count
three inappropriate because of the absence of a motion to strike by the
defendant’’); Yale University School of Medicine v. McCarthy, 26 Conn.
App. 497, 502, 602 A.2d 1040 (1992) (‘‘[T]he court dismissed the defendant’s
counterclaim on its own motion. There was no statutory or other legal
authority for the court’s dismissal . . . .’’).
12
For the same reason, we decline to conclude that what the plaintiff did
allege after judgment in the second substitute complaint is determinative
of what the plaintiff could plead on remand. Moreover, because the plaintiff
filed this appeal, the amended substitute complaint is the operative pleading.
The second substitute complaint has no bearing on our decision, as there
was no action pending when it was filed. See footnote 1 of this opinion.
13
We note that, in choosing to move to strike, the defendant effectively
waived the right to move for dismissal on any grounds other than subject
matter jurisdiction. See Practice Book § 10-7.