Ross v. Forzani, 88 Conn. App. 365, 869 A.2d 682 (2005)
CT: Underlying marriage dissolution matter
Student Contributor: Nicholas Kingsbury
Facts: Plaintiff retained a law firm to represent him in his marriage dissolution. One of the partners defected from that firm, and subsequently represented plaintiff’s wife in the marriage dissolution. Plaintiff asserted that the defecting lawyer had confidential information about the plaintiff which he then used against him. Finding a conflict of interest, the court ultimately ordered the lawyer to stop representing the wife. Plaintiff filed a complaint against the lawyer, but it was struck down by the court since plaintiff only alleged that the lawyer breached the Code of Professional Conduct (lawyer’s ethics). The plaintiff would have had to assert that the lawyer was negligent, because a mere breach of the Code of Professional Conduct is not enough to constitute negligence or legal malpractice. The plaintiff appealed, filing an amended complaint against the lawyer for legal malpractice, but this too was struck down because it had the same problem as the original stricken complaint (that it failed to assert a valid claim of legal malpractice).
Issue: Does a plaintiff waive his right to appeal if he files an amended complaint that has the same defect as the original complaint which was already struck down?
Ruling: Yes. Here, the plaintiff filed an amended complaint after the first complaint was stricken by the court. “Although the plaintiff’s amended complaint was worded in a manner slightly different from the original complaint, it contained no new facts or allegations.” By essentially filing the same insufficient claim twice, the plaintiff may not now contest the court’s decision to strike it down.
Lesson: If a plaintiff’s first complaint is stricken by the court, she may either appeal the strike (argue that the court was wrong for throwing out the claim), or she may file an amended complaint (fix the problems in the original complaint and file it again). However, if the plaintiff pleads facts in the amended complaint which are basically the same as the original complaint (despite rewording the original), the waiver rule applies, and the plaintiff can not appeal the court’s decision to strike her complaints.
Tagged with: appeal, Complaint, Connecticut, Family Law, Waiver Rule
Posted in: Connecticut, Family Law