III v. Frank Fortunati, Jr. (2013)

MEMORANDUM OF DECISION MOTION FOR JUDGMENT # 169

INTRODUCTION

Practice Book § 10–44 ¹ permits a party whose claims have been stricken by the court to replead those claims within fifteen days of the court's decision.   If the party fails to do so, the court may, upon motion by the adverse party, enter judgment on the stricken claims.

On two previous occasions, this court has stricken, inter alia, the plaintiff Kirsten S. Mettler, III's claims of recklessness against the defendant, Frank Fortunati, Jr., as being legally insufficient.   Mettler now attempts for the third time to replead those claims of recklessness against Fortunati, but does so more than fifteen days after the court's ruling striking her previous claims, and without alleging any new facts that would substantively distinguish her repleaded claims from the stricken ones.   The questions presented by Fortunati's pending motion for judgment and Mettler's objection thereto are (1) whether a party is entitled to replead a claim under Practice Book § 10–44 after the fifteen-day repleading window has run, provided the substitute pleading is filed before the adverse party's motion for judgment;  and (2) whether a party who realleges a previously stricken claim without correcting the defects that rendered it insufficient and without alleging any new facts that would materially distinguish it from the stricken claim has satisfactorily repleaded that claim within the meaning of § 10–44.

FACTS

The present case comes before the court by way of a five-count second substitute revised amended complaint filed by Mettler against Fortunati on April 4, 2013,² Like her previous complaints, Mettler's second substitute revised amended complaint was brought by and through her father, Kirsten Shaw Mettler (Kirk).³  In it, Mettler alleges the following facts.

Fortunati is a physician who specializes in forensic psychiatry.   During the course of a marriage dissolution action,⁴ Kirk entered into an agreement with Fortunati to investigate allegations by Mettler's mother that Kirk had engaged in inappropriate sexual contact with Mettler.   As part of the agreement between Kirk and Fortunati, Fortunati was to investigate the allegations by conducting interviews with Mettler, her mother, and Kirk. Fortunati was compensated for his services by both Kirk and Mettler's mother.

Fortunati began his investigation on May 22, 2006.   On or about June 9, 2006, he reported verbally to the Department of Children and Families (DCF) that Kirk had engaged in inappropriate sexual contact with Mettler.   The Department of Children and Families, in turn, reported this information to the court adjudicating Kirk's dissolution action.   Thereafter, on or about October 10, 2006, Fortunati submitted a written report disavowing his prior verbal report.

On May 28, 2007, and June 4, 2007, Fortunati conducted videotaped interviews of Mettler without Kirk's knowledge or consent.   On the basis of these interviews, Fortunati again reported that Kirk had engaged in sexually inappropriate contact with Mettler, and testified to that effect during the course of the dissolution action.   On or about April 22, 2009, the court adjudicating the dissolution action determined that Mettler had not been subject to inappropriate sexual contact by Kirk.

Mettler brings claims of negligence (count one), recklessness (count two), negligent infliction of emotional distress (count three), and slander (count five) against Fortunati for his conduct in conducting his investigation into the allegations brought by Mettler's mother.   Kirk also brings a claim of recklessness on his own behalf (count four).   Mettler and Kirk seek monetary and punitive damages, and any other relief that the court may order.

On April 19, 2013, Fortunati objected to Mettler's second substitute revised amended complaint and moved for judgment on counts two and four, as well as paragraphs alleging a loss of parental consortium.   A memorandum of law accompanied Fortunati's objection and motion for judgment.   Mettler objected to Fortunati's motion on May 14, 2013, and Fortunati replied to Mettler's objection on June 12, 2013.   Both parties were heard at the short calendar on September 9, 2013.

DISCUSSION

The present case has been pending before this court for over three years and the pleadings have not yet closed.   Therefore, before proceeding to analyze the parties' arguments, it is instructive to first review the long and somewhat complicated procedural history that preceded Fortunati's objection and motion for judgment.

Mettler's initial complaint of August 19, 2009, raised seven claims against Fortunati:  negligence (count one), recklessness (count two), negligent infliction of emotional distress (count three), negligence on behalf of Kirk (count four), recklessness on behalf of Kirk (count five), negligent infliction of emotional distress on behalf of Kirk (count six), and slander on behalf of Kirk (count seven).   On August 19, 2010, the court, Zemetis, J., dismissed counts four and six of Mettler's complaint after determining that they arose out of medical negligence and, thus, required a good faith certificate under General Statutes § 52–190a.⁵  See Doe v. Fortunati, Superior Court, judicial district of New Haven, Docket No. CV–09–5031305 (August 19, 2010, Zemetis, J.).

On October 29, 2010, Mettler filed an amended complaint.   On December 8, 2010, Fortunati filed a request to revise Mettler's amended complaint, seeking, inter alia, that Mettler conform her allegations to Judge Zemetis' August 19, 2010 ruling.   On January 14, 2011, Mettler filed a revised amended complaint in which she alleged claims of negligence (count one), recklessness (count two), negligent infliction of emotional distress (count three), breach of contract on behalf of Kirk (count four), bad faith on behalf of Kirk (count five), recklessness on behalf of Kirk (count six), and slander on behalf of Kirk (count seven).

Fortunati moved to strike counts two, four, five, six, and seven of Mettler's revised amended complaint, as well as paragraphs alleging loss of parental consortium contained within counts one, two and three, and paragraphs alleging loss of filial consortium contained within counts five and six, on February 10, 2011.   Subsequently, on November 18, 2011, this court partially granted Fortunati's motion to strike and struck Mettler's claims of breach of contract and bad faith, loss of parental and filial consortium, and recklessness.   See Mettler v. Fortunati, Superior Court, judicial district of New Haven, Docket No. CV–09–5031305–S (November 18, 2011, Fischer, J.).

In so doing, this court concluded that, with respect to her allegations of recklessness, Mettler had failed to “elevate [her] allegations to a level of ‘highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.’  “ Id., quoting Rubel v. Wainwright, 86 Conn.App. 728, 740, 862 A.2d 863 (2005).   With respect to her breach of contract and bad faith claims, this court concluded that Mettler's claims “sound[ed] in medical negligence and represent [ed] an apparent attempt to replead the medical negligence claim that the court previously dismissed.”  Id. Finally, this court struck Mettler's loss of parental and filial consortium claims after noting that “Connecticut courts have consistently declined to recognize loss of consortium claims outside the spousal context since the Supreme Court's ruling in Zamstein [v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997) ].”  Id. This court declined to strike Mettler's slander claims, concluding that she had “sufficiently alleged that the defendant acted in bad faith and that he was therefore not statutorily immune from civil liability.”  Id.

On December 2, 2011, following the court's decision partially granting Fortunati's motion to strike, Mettler filed a substitute revised amended complaint raising claims of negligence (count one), recklessness (count two), negligent infliction of emotional distress (count three), recklessness on behalf of Kirk (count four), and slander on behalf of Kirk (count five).   On February 7, 2012, Fortunati moved to strike counts two and four of that complaint, arguing first that they were not materially different from the previously stricken recklessness claims, and second, that they were legally insufficient.   On October 1, 2012, this court granted, over Mettler's objection, Fortunati's motion to strike Mettler's recklessness claims on the ground that those claims were the same in substance as those previously stricken by the court.   See Mettler v. Fortunati, Superior Court, judicial district of New Haven, Docket No. CV–09–5031305–S (October 1, 2012, Fischer, J.) (order at Dkt. No. 154.10).

On October 9, 2012, Mettler filed a motion for reargument and reconsideration of the court's decision granting Fortunati's second motion to strike.   This court denied that motion on January 14, 2013.   Mettler subsequently filed, on January 25, 2013, a motion for articulation of the court's decision granting Fortunati's second motion to strike.   Contemporaneous with the filing of that motion, Mettler also filed a motion for an extension of time to file a revised pleading.   Therein, she requested that the court “extend the time to file a revised pleading [f]ifteen (15) days after the disposition of the Motion for Articulation which has been filed contemporaneously with the instant motion.”   On January 29, 2013, the court denied Mettler's motion for articulation, and on February 11, 2013, granted her motion for an extension of time to file a revised pleading.

With the foregoing procedural history in mind, the focus of this memorandum turns to Fortunati's two claims, namely, that Mettler's second substitute revised amended complaint is procedurally untimely, and that it is substantively indistinguishable from her first substitute revised amended complaint.

I

Fortunati first argues that Mettler's second substitute revised amended complaint was untimely filed and, thus, is not properly before the court.   More specifically, he contends that despite this court's order extending her time to replead under Practice Book § 10–44 until February 13, 2013, Mettler still did not file her second substitute revised amended complaint until April 4, 2013.   Accordingly, he requests that the court sustain his objection to the second substitute revised amended complaint and enter judgment on Mettler's previously stricken claims of recklessness and loss of parental consortium.   Mettler responds that Fortunati cannot challenge her second substitute revised amended complaint by way of an objection, and that by attempting to do so, he has waived the right to file anything other than an answer.

Practice Book § 10–44 provides that a party may replead a stricken claim “[w]ithin fifteen days after the granting of any motion to strike.”   Neither party disputes that Mettler did not file her second substitute revised amended complaint within that period of time.   Although she requested and obtained the court's permission to extend her time to replead to include the fifteen days following the court's disposition of her motion for articulation, the court denied that motion on January 29, 2013, and Mettler was therefore required to file her second substitute revised amended complaint no later than February 13, 2013.   Because she filed her complaint on April 4, 2013, over one month later, it is untimely insofar as it was filed pursuant to § 10–44.⁶

Mettler nevertheless contends that Fortunati was required to file his objection and motion for judgment prior to her submitting her second substitute revised amended complaint, and that by failing to do so, he has essentially waived his right to object.   In support of her argument, she cites Practice Book § 10–6,⁷ which sets the order of the pleadings, and which she argues forecloses Fortunati from challenging the presently operative complaint by any means not set forth in that provision.   Stated another way, Mettler claims that because an objection is not one of the pleadings enumerated in § 10–6, Fortunati is precluded from using an objection to challenge the operative complaint.

Mettler's argument rests on at least two flawed premises.   The first is that she correctly filed her second substitute revised amended complaint and, consequently, that it is now the operative complaint in this case.   But as discussed in the preceding paragraphs, Mettler did not file her second substitute revised amended complaint in accordance with Practice Book § 10–44, nor did she seek Fortunati's permission or the court's leave to amend it under Practice Book § 10–60(a)(2) or (3).⁸  In similar cases, courts have declined to countenance such improperly filed complaints and have instead stricken them from their dockets.   See Perugini v. Giuliano, Superior Court, judicial district of Waterbury, Docket No. CV–10–5016077–S (September 25, 2012, Shapiro, J.) (striking from docket complaint filed after fifteen days set forth in Practice Book § 10–44 and without leave of the court);  Becher v. We Rent Minivans, Superior Court, judicial district of Waterbury, Docket No. CV–07–5005084–S (January 8, 2008, Upson, J.) (sustaining objection to revised complaint where plaintiff filed it “well beyond the fifteen-day period provided by Practice Book § 10–44, and not in accordance with the requirements of § 10–60 of the 2007 Connecticut Practice Book”).

Accordingly, because Mettler's second substitute revised amended complaint is not properly before the court, Practice Book § 10–6 is inapplicable.   This conclusion accords with Practice Book § 1–8, which provides that “[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”   Here, it would neither facilitate court business nor advance justice to allow Mettler to rely on our rules of practice to prevent Fortunati from objecting to a complaint which is itself in violation of our rules of practice.

The second flawed premise on which Mettler's argument rests is that Practice Book § 10–6 should be interpreted as precluding a party from objecting to an improperly filed pleading.   Nothing in that provision indicates that a party is disallowed from making objections to pleadings that are not properly before the court.   Although § 10–6 sets the order of various pleadings, it does not state that objections—or any other filings not enumerated therein—are categorically prohibited.   Were the court to construe § 10–6 in such a hypertechnical and narrow manner, pleadings that are defective for reasons not properly addressed by any of the filings described in § 10–6—such as requests to revise, motions to strike, or motions to dismiss—would be insulated from attack until after the pleadings have closed.

For similar reasons, Mettler's argument that by filing an objection, Fortunati has waived the right to file anything other than an answer, must also fail.   Practice Book § 10–7, which must be read in concert with Practice Book § 10–6, provides that “[i]n all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”  (Emphasis added.)   In the present case, Fortunati did not file a “pleading provided for” by Practice Book § 10–6.   Consequently, Practice Book § 10–7 and the waiver rule described therein are inapplicable.

Accordingly, our rules of practice do not prevent a party from objecting to a complaint that is procedurally improper.   Mettler's second substitute revised amended complaint was not filed in compliance with Practice Book §§ 10–44, 10–60, or any other provision governing amendments to pleadings.   Therefore, it is not properly before this court and Fortunati's objection is sustained.

II

Fortunati next argues that the recklessness claims raised in Mettler's second substitute revised amended complaint are substantively indistinguishable from her previously stricken claims of recklessness.   Fortunati further argues that Mettler is attempting to reinsert a loss of parental consortium claim that this court had previously determined was unrecognized in Connecticut.   Mettler responds that, contrary to Fortunati's arguments, the allegations set forth in her second substitute revised amended complaint do, in fact, remedy the deficiencies of her earlier claims.

“In determining whether [a] court properly render[s] judgment in [a] defendants' favor, the issue distills to whether the newly filed pleading ․ [is] a ‘new pleading’ in that it [is] materially different than the ․ [previous] pleading that the court had determined to be legally insufficient.   That is, the issue is whether the court properly determine[s] that the [plaintiff] ha[s] failed to remedy the pleading deficiencies that gave rise to the granting of the motions to strike or, in the alternative, set forth an entirely new cause of action.   It is proper for a court to dispose of the substance of a complaint merely repetitive of one to which a demurrer had earlier been sustained.”  (Internal quotation marks omitted.)  Caltabiano v. L & L Real Estate Holdings II, LLC, 128 Conn.App. 84, 88, 15 A.3d 1163 (2011).

In the present case, Mettler's second substitute revised amended complaint fails to remedy the pleading deficiencies that gave rise to the granting of Fortunati's previous motions to strike, or allege new facts that would materially distinguish the recklessness claims set forth in the second substitute revised amended complaint from her previously stricken claims of recklessness.   Mettler continues to assert in various ways that Fortunati knew the protocols and methods for conducting investigations of the type he was contracted to conduct in the present case, that he purposefully disregarded those protocols and methods in conducting his investigation, and that he made reports to various entities with knowledge of the harmful consequences attendant to his improper investigation.   Although Mettler attempts to bolster these allegations by adding some factual details, her claim remains the same basic one that this court previously concluded failed to demonstrate “a level of ‘highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.’  “ Mettler v. Fortunati, supra, Superior Court, Docket No. CV–09–5031305–S.   Moreover, paragraphs 19(a) and 17(a) of counts two and three of Mettler's second substitute revised amended complaint, which allege that Mettler has suffered damages in the form of “reduced visitation with her father during a critical time in her life,” constitute an attempt to replead the previously stricken claim of loss of parental consortium, which this court had earlier concluded was not recognized in Connecticut.   See id.

Consequently, even if Mettler's second substitute revised amended complaint were properly before this court, it would still be defective and remain subject to Fortunati's objection and motion for judgment because it fails to constitute a new pleading under Practice Book § 10–44, the provision under which she purports to file it.

III

Consistent with the discussions in parts I and II of this memorandum, Mettler's second substitute revised amended complaint is not properly before this court for two reasons.   First, it is untimely and procedurally improper.   Second, it does not constitute a new pleading under Practice Book § 10–44.   Accordingly, the court sustains Fortunati's objection to Mettler's second substitute revised amended complaint and orders it stricken from the docket.

Additionally, because Mettler has failed to properly replead the stricken claims of recklessness as set forth in counts two and four of her substitute revised amended complaint of December 2, 2012, and her claims of loss of parental consortium set forth in her revised amended complaint of January 14, 2011, Fortunati's motion for judgment on those claims is granted.

CONCLUSION

For the foregoing reasons, the court sustains Fortunati's objection to Mettler's second substitute revised amended complaint and enters judgment on her claims of recklessness and loss of parental consortium.

Brian T. Fischer, Judge

FOOTNOTES

FN1. 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, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross 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, counterclaim or cross complaint, or count thereof.”.  FN1. 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, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross 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, counterclaim or cross complaint, or count thereof.”

FN2. Although Mettler entitles her complaint, “Third Revised Complaint,” the operative complaint is actually the fifth complaint she has filed in this action, and the second substitute revised amended complaint.   Mettler filed her initial complaint on August 19, 2009, and an amended complaint on October 29, 2010.   See Dkt. Nos. 2 & 123.00.   A revised amended complaint followed on January 14, 2011, after Fortunati filed a request to revise.   See Dkt. No. 126.00.   On December 2, 2011, Mettler filed a substitute revised amended complaint following this court's ruling granting Fortunati's motion to strike portions of her third revised complaint.   See Dkt. Nos. 136.30 & 150.00.   Mettler filed a second substitute revised amended complaint on April 4, 2013, after this court granted Fortunati's second motion to strike portions of her first substitute revised amended complaint.   See Dkt. Nos. 154.10 & 166.00..  FN2. Although Mettler entitles her complaint, “Third Revised Complaint,” the operative complaint is actually the fifth complaint she has filed in this action, and the second substitute revised amended complaint.   Mettler filed her initial complaint on August 19, 2009, and an amended complaint on October 29, 2010.   See Dkt. Nos. 2 & 123.00.   A revised amended complaint followed on January 14, 2011, after Fortunati filed a request to revise.   See Dkt. No. 126.00.   On December 2, 2011, Mettler filed a substitute revised amended complaint following this court's ruling granting Fortunati's motion to strike portions of her third revised complaint.   See Dkt. Nos. 136.30 & 150.00.   Mettler filed a second substitute revised amended complaint on April 4, 2013, after this court granted Fortunati's second motion to strike portions of her first substitute revised amended complaint.   See Dkt. Nos. 154.10 & 166.00.

FN3. At various times, the plaintiff's father has referred to himself as “Kirk” to distinguish himself from the plaintiff.   For the sake of clarity, this memorandum will follow that same practice..  FN3. At various times, the plaintiff's father has referred to himself as “Kirk” to distinguish himself from the plaintiff.   For the sake of clarity, this memorandum will follow that same practice.

FN4. Kirk does not specifically identify the parties to the dissolution action, although it can be inferred from the facts alleged in his complaint that the parties were Kirk and Mettler's mother..  FN4. Kirk does not specifically identify the parties to the dissolution action, although it can be inferred from the facts alleged in his complaint that the parties were Kirk and Mettler's mother.

FN5. General Statutes § 52–190a provides in relevant part:  “(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.   The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.   The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate ․ (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”.  FN5. General Statutes § 52–190a provides in relevant part:  “(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.   The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.   The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate ․ (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”

FN6. Mettler's second substitute revised amended complaint is also procedurally improper under Practice Book § 10–44 because its revisions exceed the permissible scope of amendments under the provision.  “The right afforded by Practice Book § 10–44 to file a new pleading following the granting of a motion to strike ․ is limited to making those corrections needed to render the claims set forth in the original pleading legally sufficient.   It is not an opportunity to file wholly amended pleadings that assert new legal claims or rely on a wholly unrelated set of facts, permission for which ordinarily could be obtained only in accordance with the provisions of Practice Book § 10–60.”  GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 180–81, 73 A.3d 742 (2013)..  FN6. Mettler's second substitute revised amended complaint is also procedurally improper under Practice Book § 10–44 because its revisions exceed the permissible scope of amendments under the provision.  “The right afforded by Practice Book § 10–44 to file a new pleading following the granting of a motion to strike ․ is limited to making those corrections needed to render the claims set forth in the original pleading legally sufficient.   It is not an opportunity to file wholly amended pleadings that assert new legal claims or rely on a wholly unrelated set of facts, permission for which ordinarily could be obtained only in accordance with the provisions of Practice Book § 10–60.”  GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 180–81, 73 A.3d 742 (2013).

FN7. Practice Book § 10–6 provides that “[t]he 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.”.  FN7. Practice Book § 10–6 provides that “[t]he 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.”

FN8. Practice Book § 10–60 provides, in relevant part:  “(a) Except as provided in Section 10–66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:(1) By order of judicial authority;  or(2) By written consent of the adverse party;  or(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10–12 through 10–17, and with proof of service endorsed thereon.   If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.   If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10–12 through 10–17 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list.”.  FN8. Practice Book § 10–60 provides, in relevant part:  “(a) Except as provided in Section 10–66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:(1) By order of judicial authority;  or(2) By written consent of the adverse party;  or(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10–12 through 10–17, and with proof of service endorsed thereon.   If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.   If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10–12 through 10–17 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list.”

Fischer, Brian T., J.