Glory Chapel International Cathedral v. Philadelphia Indemnity Ins. Co.

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GLORY CHAPEL INTERNATIONAL CATHEDRAL v.
PHILADELPHIA INDEMNITY INSURANCE
COMPANY ET AL.
(AC 45057)
Alvord, Cradle and Clark, Js.

Syllabus

Pursuant to the rule of practice (§ 10-44), ‘‘[w]ithin 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.’’
The plaintiff appealed to this court from the judgment of the trial court
striking all counts of its complaint against the defendant insurance
company, P Co. The plaintiff filed its original complaint against both P
Co. and the individual defendant, B, alleging that B had set fire to a
garage adjacent to a church owned by the plaintiff. In their efforts to
contain and extinguish the fire, emergency personnel severely damaged
portions of the church. The complaint alleged that, at the time of the
fire and resulting damage, the plaintiff was insured against such damage
pursuant to an insurance policy issued by P Co. The plaintiff filed a
claim with P Co., and a dispute ensued when P Co. allegedly paid
amounts that were inadequate to compensate the plaintiff for the actual
costs of repairs. The plaintiff’s complaint contained two counts against
P Co., claiming breach of contract and breach of an implied covenant
of good faith and fair dealing, and one count alleging negligence against
B. P Co. filed a motion to strike the two claims against it on the ground
of misjoinder, arguing that the plaintiff’s contractual claims against P
Co. and its negligence claim against B were separate actions that did
not arise out of the same transaction. The trial court granted P Co.’s
motion to strike counts one and two of the complaint for misjoinder,
concluding that, although the fire and its consequences were common
facts to the plaintiff’s claims against both defendants, that was insuffi-
cient to characterize the claims as arising out of the same transaction
or transactions connected with the same subject of action. The plaintiff
subsequently filed a substitute complaint pursuant to Practice Book
§ 10-44 that asserted only its two claims against P Co. P Co. filed an
objection to the substitute complaint, arguing that P Co. had been
dropped from the action and was no longer a party and that the plaintiff
was therefore required to proceed only against B. The trial court sus-
tained P Co.’s objection and, upon the plaintiff’s motion, rendered judg-
ment for P Co. on the two stricken counts against it. More than six
months after the plaintiff had appealed to this court, the plaintiff filed
an offer of compromise in the trial court offering to resolve the entirety
of its claims against P Co. P Co. filed an objection, arguing that the
plaintiff’s purported offer of compromise was invalid because P Co. was
no longer a defendant in the action, as judgment had been rendered in
its favor and, accordingly, there were no claims pending in the litigation
against it to settle. The court sustained P Co.’s objection, and the plaintiff
subsequently amended its appeal to include the trial court’s decision
sustaining P Co.’s objection. Held:
1. The plaintiff could not prevail on its claim that the trial court erroneously
granted P Co.’s motion to strike certain counts of the plaintiff’s complaint
on the basis of misjoinder: the plaintiff waived its right to appeal the
merits of the court’s order on the motion to strike when it elected to
exercise its right to file a substitute complaint pursuant to Practice
Book § 10-44; moreover, although the plaintiff argued that the waiver
rule was inapplicable because the trial court rejected its substitute
complaint and therefore prevented it from exercising its right to file a
substitute pleading, once the plaintiff filed its substitute complaint, that
pleading became the controlling complaint by operation of law, the
plaintiff provided no precedent in support of the proposition that waiver
occurs only if a court accepts a substitute pleading, and the plaintiff may
instead challenge the court’s ruling striking the substitute complaint.
2. The trial court improperly sustained P Co.’s objection to the plaintiff’s
substitute complaint and rendered judgment in favor of P Co.: contrary
to P Co.’s unsupported argument that it was automatically dropped from
the action upon the trial court’s granting of its motion to strike, nothing
in the court’s order granting such motion suggested that P Co. had been
dropped from the action altogether, that the court was exercising any
authority under the statute (§ 52-108) governing misjoinder to drop P
Co. from the action or that the interests of justice so required; moreover,
P Co.’s argument that Practice Book § 10-44 precluded the plaintiff from
filing a substitute pleading was unavailing, as such a rule, on the contrary,
would operate to deprive a plaintiff of his or her right to file a new
pleading pursuant to § 10-44 to cure the defects that served as the basis
for striking the complaint; furthermore, although P Co. contended that
there is no authority that permits a plaintiff to choose which defendants
or causes of action to drop from the case when repleading pursuant
to § 10-44 to cure misjoinder, this court’s construction of § 10-44 was
consistent with the bedrock principle that a plaintiff is the master of
his or her own complaint, and allowing a plaintiff to file a substitute
pleading against whichever defendant a plaintiff chooses after a com-
plaint has been stricken for misjoinder properly affords the plaintiff the
latitude to decide which theories of recovery to pursue against which
defendants in that action and to weigh the risks of proceeding with
certain claims in a separate action.
3. The plaintiff could not prevail on its claim that the trial court improperly
sustained P Co.’s objection to the plaintiff’s offer of compromise: the
statute (§ 52-192a) governing offers of compromise required the plaintiff
to file its offer of compromise while claims remained pending against
P Co. in the trial court and prior to the court rendering judgment for
P Co., and, because judgment had been rendered for P Co. on all counts,
the offer of compromise directed to P Co. was not capable of settling
the claim underlying the action because that claim had already been
resolved for P Co.; moreover, when the provisions of § 52-192a are read
together and construed with reasonable strictness for the party to whom
an offer of compromise has been made, such provisions clearly contem-
plate a process of making and accepting offers of compromise in the
trial court prior to a court’s resolution of the claims that are the subject
of the offer of compromise, and allowing plaintiffs to make offers of
compromise to defendants after judgment has been rendered for those
defendants and while the claims are on appeal does not serve the purpose
of promoting the public policy favoring the pretrial resolution of disputes
but, rather, such an interpretation would require a defendant who has
already prevailed in the trial court to accept a postjudgment offer of
compromise in order to avoid the punitive consequences of the statute,
which would expose the party that actually prevailed in the trial court
to the punitive effects of the statute; furthermore, where there is an
ambiguity with respect to the provisions of § 52-192a, this court must
interpret the statute in favor of the party who would be subject to the
punitive consequences of the statute rather than in favor of the party
who would benefit from those consequences, there is no language in
the statute suggesting that the legislature intended to permit a plaintiff
to file an offer of compromise directed to a defendant for whom judgment
already has been rendered and while a plaintiff pursues an appeal of
that judgment, and, in the absence of clear evidence that the legislature
intended offers to be made in such circumstances, this court declined
to interpret § 52-192a in such a manner.
Argued January 10—officially released April 2, 2024

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Noble, J., granted the named defendant’s motion
to strike; thereafter, the plaintiff filed a substitute com-
plaint; subsequently, the court, Sheridan, J., sustained
the named defendant’s objection to the substitute com-
plaint; thereafter, the court, Sheridan, J., granted the
plaintiff’s motion for judgment as to the named defen-
dant and rendered judgment thereon, from which the
plaintiff appealed to this court. Reversed in part; fur-
ther proceedings.
James J. Healy, with whom was Leonard M. Isaac,
for the appellant (plaintiff).
Linda L. Morkan, with whom were Steven O. Clancy
and Scott T. Garosshen, for the appellee (named defen-
dant).
Opinion

CLARK, J. The plaintiff, Glory Chapel International
Cathedral (Glory Chapel), appeals from the judgment
of the trial court rendered in favor of the defendant
Philadelphia Indemnity Insurance Company (Philadel-
phia Indemnity), striking all counts of Glory Chapel’s
complaint against Philadelphia Indemnity.1 On appeal,
Glory Chapel claims that (1) the court erred in striking
its original complaint on the basis of misjoinder, (2)
even if the claims in its original complaint were properly
stricken, the court erred by rejecting the substitute com-
plaint that it filed pursuant to Practice Book § 10-44,2
and (3) the court erred by sustaining Philadelphia
Indemnity’s objection to an offer of compromise that
Glory Chapel filed during the pendency of this appeal.
For the reasons that follow, we agree with Glory Chapel
on its second claim that the trial court improperly
rejected its substitute complaint, but we disagree with
it on its other claims. Accordingly, we affirm in part
and reverse in part the judgment of the trial court.
We begin with relevant facts and procedural history
of the case. In September, 2019, Glory Chapel com-
menced this action by writ of summons and complaint
against Philadelphia Indemnity and Kevon Bennett. The
complaint alleged that Bennett set fire to a garage adja-
cent to a church owned by Glory Chapel located at 221
Greenfield Street in Hartford. In their efforts to contain
and extinguish the fire, emergency personnel stationed
some equipment and personnel on the roof of the
church, using large quantities of water to extinguish
the fire and protect surrounding property. Despite the
best efforts of emergency responders, portions of the
church were greatly damaged by fire, water, and smoke.
The complaint alleges that, at the time of the resulting
damage, the church was insured against that damage
pursuant to an insurance policy issued by Philadelphia
Indemnity. Glory Chapel filed a claim with Philadelphia
Indemnity and a dispute ensued when Philadelphia
Indemnity allegedly paid amounts that were inadequate
to compensate Glory Chapel for the true costs of repairs.
Glory Chapel’s complaint contains three counts: counts
one and two respectively claim breach of contract and
breach of an implied covenant of good faith and fair
dealing against Philadelphia Indemnity and count three
alleges a claim of negligence against Bennett.
On November 12, 2019, Philadelphia Indemnity filed
a motion to strike the two claims against it on the
ground of misjoinder, arguing that by bringing those
counts and the count against Bennett in a single com-
plaint, Glory Chapel improperly joined (1) its contrac-
tual coverage dispute with Philadelphia Indemnity
stemming from Philadelphia Indemnity’s alleged failure
to pay insurance benefits in accordance with the policy
and other purported claims handling issues with (2) its
negligence action against Bennett for allegedly causing
the subject fire. Philadelphia Indemnity argued that
Glory Chapel’s claims are ‘‘separate actions that do not
arise out of the same transaction, and keeping them
joined could lead to prejudice and confusion as this
case progresses.’’
On January 2, 2020, Glory Chapel filed its objection
to the motion to strike. It argued that the motion to
strike lacked merit because the claims raised by Glory
Chapel against both defendants arose out of the destruc-
tion of Glory Chapel’s property by fire. Glory Chapel
argued, among other things, that if the ‘‘court were to
construe the meaning of transaction so narrowly as to
find a breach of insurance contract claim arising from
the casualty to be a different transaction than the casu-
alty itself, it would require the parties to file separate
lawsuits against their insurers and the tortfeasors in
every case where an insurer promised to protect a poli-
cyholder from the damages that result from a casualty
loss caused by a third party. Such a holding would
require, for example, a plaintiff injured in a car accident
to bring separate suits against his or her underinsured
motorist carrier and the tortfeasor.’’ Glory Chapel fur-
ther argued that Philadelphia Indemnity’s contention
that its claims should be brought in a separate suit ‘‘not
only requires parties to pursue discovery of the same
damages in two separate suits, but it also adds as a
possibility a need for a third suit if Philadelphia [Indem-
nity] thereafter decides to assert subrogation claims
against the tort [defendant]. [Philadelphia Indemnity’s]
motion to strike on joinder grounds thus urges the court
to enter a ruling that would not only require the parties
to conduct largely identical discovery in separate suits
but would impair the ability of the tort defendant to
try to resolve all claims arising from his misconduct in
one suit.’’
On January 29, 2021, the court, Noble, J., granted
Philadelphia Indemnity’s motion to strike counts one
and two of the complaint for misjoinder, concluding
that the claims against Philadelphia Indemnity did not
arise out of the same transaction connected with the
same subject of action as the tort claim against Bennett.
The court stated, inter alia, that ‘‘Glory Chapel’s claim
against [Philadelphia Indemnity] involves issues of con-
tractual coverage and claims handling which are com-
pletely independent of Bennett’s claimed negligence in
causing the initial fire. While the fire and its conse-
quences are common facts to both, this is insufficient
to characterize the claims as the ‘same transaction or
transactions connected with the same subject of action.’ ’’
On February 16, 2021, Glory Chapel filed a substitute
complaint pursuant to Practice Book § 10-44 that only
asserted claims against Philadelphia Indemnity sound-
ing in breach of contract and breach of an implied
covenant of good faith and fair dealing. Unlike the origi-
nal complaint, the substitute complaint did not assert
any claims against Bennett.
On February 25, 2021, Philadelphia Indemnity filed
an objection to the substitute complaint, arguing that
Philadelphia Indemnity was no longer a party to the
action. Philadelphia Indemnity claimed that, pursuant
to the court’s decision striking the claims against it on
the basis of misjoinder, it had been dropped from the
action, requiring Glory Chapel to proceed only against
Bennett.
On September 28, 2021, the court, Sheridan, J., sus-
tained Philadelphia Indemnity’s objection. The order
stated: ‘‘Docket entry #126, if filed as a substitute com-
plaint or as an amended complaint, is inconsistent with
the court’s prior ruling on the motion to strike. A proper
substitute complaint must be filed within thirty days of
this order.’’
On October 18, 2021, following Glory Chapel’s motion
for judgment pursuant to Practice Book § 10-44, the
court, Sheridan, J., rendered judgment in favor of Phila-
delphia Indemnity on the two stricken counts against
it. Glory Chapel appealed to this court the following day.
I
Glory Chapel first claims that the trial court errone-
ously granted Philadelphia Indemnity’s motion to strike
on the basis of misjoinder. Glory Chapel argues that a
plaintiff’s complaint may join claims against multiple
defendants arising from the same ‘‘subject of action’’
and that its claims against Philadelphia Indemnity and
Bennett arose from the very same subject of action—the
fire that destroyed the church’s roof and other property.
Specifically, Glory Chapel claims that the tort claim
against Bennett and its contractual claims against Phila-
delphia Indemnity both turn on an evaluation of the
very same roof damage caused by the very same fire.
Philadelphia Indemnity argues both that the court prop-
erly struck counts one and two of the original complaint
and that Glory Chapel waived its right to appeal the
merits of the court’s order striking those counts when
it filed its substitute complaint. We agree with Philadel-
phia Indemnity that Glory Chapel waived its right to
appeal from the court’s order striking counts one and
two of the original complaint when it elected to exercise
its right to file a substitute complaint pursuant to Prac-
tice Book § 10-44.
Our standard of review is well known. ‘‘Construction
of the effect of pleadings is a question of law and, as
such, our review is plenary.’’ Ross v. Forzani, 88 Conn.
App. 365, 368, 869 A.2d 682 (2005).
Our case law makes clear that by filing a substitute
complaint, ‘‘a plaintiff is said to have waived the right
to appeal from the court’s order striking the original
complaint.’’ (Emphasis added.) O’Donnell v. AXA Equi-
table Life Ins. Co., 210 Conn. App. 662, 670, 270 A.3d
751, cert. granted, 343 Conn. 910, 273 A.3d 695 (2022);
see also Royce v. Westport, 183 Conn. 177, 179, 439 A.2d
298 (1981). Indeed, ‘‘[a]fter a court has granted a motion
to strike, [the plaintiff] may either amend his pleading
[pursuant to Practice Book § 10-44] or, on the rendering
of judgment, file an appeal. . . . The choices are mutu-
ally exclusive . . . .’’ (Internal quotation marks omit-
ted.) Lund v. Milford Hospital, Inc., 326 Conn. 846,
850, 168 A.3d 479 (2017). But once the plaintiff files a
substitute complaint, ‘‘the ruling on the [original motion
to strike] ceases to be an issue.’’ (Internal quotation marks
omitted.) Ross v. Forzani, supra, 88 Conn. App. 369.
Notwithstanding the foregoing, Glory Chapel argues
that the waiver rule should not apply in this case
because the trial court rejected its substitute complaint
and therefore prevented it from exercising its right to
file a substitute pleading. It claims that ‘‘waiver does
not arise merely upon filing a substitute complaint after
a ruling granting a motion to strike. . . . Rather, it is
once the amendment has bec[o]me the controlling
pleading and the earlier one [is] removed from the case
that the plaintiff has waived the right to appeal the
previous pleading.’’ (Citation omitted; emphasis omit-
ted; internal quotation marks omitted.) Glory Chapel
fails to recognize, however, that once it filed its substi-
tute complaint, that pleading became the controlling
complaint by operation of law, regardless of whether
or not the court ultimately accepted its argument that
the substitute pleading cured the defect in the earlier
complaint. Glory Chapel has not provided us with any
precedent in support of the proposition that waiver
occurs only if a court accepts a substitute pleading. On
the contrary, the great weight of our case law says that
the filing of a substitute pleading after the original
pleading is stricken serves as the waiver to challenge
the granting of the motion to strike. See, e.g., Royce v.
Westport, supra, 183 Conn. 177–78 (‘‘The plaintiffs had,
however, in the meantime timely pleaded over after
the sustaining of the demurrer by filing a substitute
complaint on September 19, 1978. . . . According to
the Practice Book [1978] § 158 [now Practice Book § 10-
45], this new September complaint became the control-
ling pleading and the earlier one was removed from
the case.’’ (Citation omitted; emphasis added.)); Good
Humor Corp. v. Ricciuti, 160 Conn. 133, 135, 273 A.2d
886 (1971) (‘‘[t]he filing of an amended pleading oper-
ates as a waiver of the right to claim that there was
error in the sustaining of the demurrer to the original
pleading’’ (emphasis added)).
Although the filing of a substitute complaint operates
as a waiver of the right to claim that there was error
in the court’s order striking the original complaint,
should the court subsequently reject or strike the substi-
tute complaint, a plaintiff generally may challenge that
decision on appeal. See, e.g., O’Donnell v. AXA Equita-
ble Life Ins. Co., supra, 210 Conn. App. 670–71 (‘‘[i]f
the plaintiff pleads facts in the substitute complaint
which are materially different from those in the original
complaint, then . . . the plaintiff can challenge the
merits of the court’s ruling striking the [substitute] com-
plaint’’ (citation omitted; internal quotation marks omit-
ted)). Accordingly, we conclude that Glory Chapel
waived its right to appeal the merits of the court’s order
striking its original complaint when it filed its substitute
complaint in this action.3
II
Glory Chapel next claims that, regardless of whether
the court properly struck counts one and two of its
original complaint on the basis of misjoinder, reversal
is required because the court improperly rejected its
substitute complaint. In particular, Glory Chapel con-
tends that the court erred in accepting Philadelphia
Indemnity’s argument that the court’s order striking
all counts against Philadelphia Indemnity resulted in
Philadelphia Indemnity being dropped from the case.
Glory Chapel claims that Practice Book § 10-44 afforded
it the right to file a substitute pleading within fifteen
days after the granting of the motion to strike to cure
any deficiencies in that initial complaint. It further con-
tends that, in the context of an order striking a com-
plaint for misjoinder, § 10-44 affords it the right to
decide which claims to assert against which defendants.
We agree.4
As previously explained, ‘‘[c]onstruction of the effect
of pleadings is a question of law and, as such, our review
is plenary.’’ Ross v. Forzani, supra, 88 Conn. App. 368.
To the extent the present claim requires us to interpret
the trial court’s order or our rules of practice, our review
is also plenary. See Barclays Bank Delaware v. Bam-
ford, 213 Conn. App. 1, 12, 277 A.3d 151 (‘‘[t]he interpre-
tation and application of a statute, and thus a Practice
Book provision, involves a question of law over which
our review is plenary’’ (internal quotation marks omit-
ted)), cert. denied, 345 Conn. 905, 282 A.3d 982 (2022);
Clark v. Clark, 150 Conn. App. 551, 569 n.12, 91 A.3d
944 (2014) (‘‘[t]he construction of an order is a question
of law over which we exercise plenary review’’ (internal
quotation marks omitted)).
Two or more causes of action may be joined in a single
complaint. See General Statutes § 52-97; Practice Book
§ 10-21. Section 52-97 provides in relevant part that, ‘‘if
several causes of action are united in the same com-
plaint, they shall all be brought to recover, either . . .
upon claims, whether in contract or tort or both, arising
out of the same transaction or transactions connected
with the same subject of action,’’ provided that the
joined claims ‘‘affect all the parties to the action . . . .’’
Practice Book § 10-39 (a) provides in relevant part: ‘‘A
motion to strike shall be used whenever any party
wishes to contest . . . the joining of two or more
causes of action which cannot properly be united in
one complaint, whether the same be stated in one or
more counts . . . .’’ Practice Book § 11-3 similarly makes
clear that ‘‘[t]he exclusive remedy for misjoinder of parties
is by motion to strike.’’
If a party’s pleading is stricken, 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 plead-
ing; 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 com-
plaint, or count thereof. . . .’’
One obvious purpose of Practice Book § 10-44 is to
provide the party whose pleading was previously stricken
the opportunity to remedy the defects identified by the
trial court in granting the earlier motion to strike. See
Lund v. Milford Hospital, Inc., supra, 326 Conn. 850.
Indeed, after a party files a substitute complaint, ‘‘[t]he
law in this area requires the court to compare the two
complaints to determine whether the amended complaint
‘advanced the pleadings’ by remedying the defects iden-
tified by the trial court in granting the earlier motion
to strike.’’ Id., 851.
In the present case, Glory Chapel filed its substitute
complaint within fifteen days of the court’s order grant-
ing Philadelphia Indemnity’s motion to strike counts
one and two of its original complaint. Glory Chapel sought
to cure any defects arising from misjoinder by asserting
in its substitute complaint only the two counts against
Philadelphia Indemnity. Glory Chapel omitted the claim
it previously had asserted against Bennett.
Philadelphia Indemnity filed an objection to the sub-
stitute complaint claiming that upon the court’s deci-
sion striking all counts asserted against it, Philadelphia
Indemnity was ‘‘dropped’’ from the litigation. Philadel-
phia Indemnity therefore argued to the court that Glory
Chapel’s substitute complaint asserting two claims
against it did not comply with the court’s prior order
granting the motion to strike. The court, Sheridan, J.,
sustained Philadelphia Indemnity’s objection, stating
that Glory Chapel’s substitute complaint was ‘‘inconsis-
tent with the court’s prior ruling on the motion to strike.’’
Upon motion of Glory Chapel, the court thereafter ren-
dered judgment in favor of Philadelphia Indemnity on
the two stricken counts.
On the basis of our review, we conclude that the court’s
decision sustaining Philadelphia Indemnity’s objection
to Glory Chapel’s substitute complaint and subse-
quently rendering judgment in favor of Philadelphia
Indemnity was improper. Nothing in the court’s order
striking counts one and two of the original complaint
suggested, much less held, that Philadelphia Indemnity
had been ‘‘dropped’’ from the action altogether or that
Glory Chapel was precluded from filing a substitute
pleading pursuant to Practice Book § 10-44. The court’s
order granting the motion to strike simply provided that,
because ‘‘Glory Chapel’s claim[s] against [Philadelphia
Indemnity] do not arise out of the same transaction or
transactions connected with the same subject of action
as the tort claim against Bennett, the motion to strike
counts one and two [is] granted.’’5 (Emphasis added.)
Although we recognize that ‘‘[n]ew parties may be
added and summoned in, and parties misjoined may be
dropped, by order of the court, at any stage of the action,
as the court deems the interests of justice require’’;
General Statutes § 52-108;6 nothing in the court’s deci-
sion granting the motion to strike indicated that it was
exercising any authority under § 52-108 to drop Phila-
delphia Indemnity from the action or that the interests
of justice so required.
Furthermore, we are not persuaded by Philadelphia
Indemnity’s argument that it was automatically dropped
from the action upon Judge Noble’s granting of its
motion to strike. Philadelphia Indemnity cites no cases,
and we are unaware of any, in which a court has held
that an order granting a motion to strike certain counts
of a complaint on the basis of misjoinder automatically
drops or otherwise removes the moving party from the
action. On the contrary, such a rule would operate to
deprive a plaintiff of his or her right to file a new plead-
ing pursuant to Practice Book § 10-44 to cure the defects
that served as the basis for striking the complaint. See
Garden Homes Profit Sharing Trust, L.P. v. Cyr, 189
Conn. App. 75, 85, 206 A.3d 230 (2019) (concluding that
court improperly rendered judgment immediately after
finding of nonjoinder ‘‘without affording the plaintiff
notice and at least fifteen days to add [a necessary
party] to the action’’ pursuant to § 10-44).
Our rules of practice instead make clear that when
a defendant’s motion to strike is granted on the basis
of misjoinder, the plaintiff is afforded the right to file
a new pleading pursuant to Practice Book § 10-44 so
as to cure the defect or, on the rendering of judgment,
to file an appeal. See Lund v. Milford Hospital, Inc.,
supra, 326 Conn. 850. By electing to replead pursuant to
§ 10-44 to cure misjoinder, a plaintiff may, for example,
allege new facts that sufficiently link the causes of
action together or, as Glory Chapel did here, elect to
proceed by asserting causes of action against just one
of the defendants in the original complaint. See id., 851
n.4 (‘‘[a]n example of a proper pleading filed pursuant
to . . . § 10-44 is one that [supplies] the essential alle-
gation lacking in the complaint that was stricken’’ (inter-
nal quotation marks omitted)); Fairfield v. Southport
National Bank, 77 Conn. 423, 427, 59 A. 513 (1904)
(‘‘Had the other defendants been dropped, the misjoin-
der complained of would have disappeared from the
case. . . . We think the court, even upon its own
assumption as to misjoinder, erred in rendering judg-
ment as it did.); Ferreira v. Estevam, Superior Court,
judicial district of Hartford-New Britain at Hartford,
Docket No. 37 47 06 (November 7, 1990) (2 Conn. L.
Rptr. 712, 713) (‘‘The granting of a motion to strike
invites the losing party to file a new pleading in order
to cure the defect. In the context of this case, it would
permit the plaintiff either to allege facts which might
link the misjoined causes of action or to elect which
cause of action should remain in the original complaint
and which should form the basis of a new complaint.’’).
Although Philadelphia Indemnity contends that there
is no authority that permits a plaintiff to choose which
defendants or causes of action to drop from the case
when repleading pursuant to Practice Book § 10-44 to
cure misjoinder, our construction of § 10-44 is consis-
tent with the bedrock principle that a plaintiff is the
master of his or her own complaint. See Reclaimant
Corp. v. Deutsch, 332 Conn. 590, 607 n.11, 211 A.3d 976
(2019) (‘‘[a]s the master of the complaint, the plaintiff
is free to decide what theory of recovery to pursue’’).
Accordingly, we see no reason why a plaintiff ought to
be precluded from choosing how best to amend his or
her complaint pursuant to § 10-44 to cure the defects
that serve as the basis for a court’s decision striking a
complaint on the basis of misjoinder. Allowing a plain-
tiff to file a substitute pleading against whichever defen-
dant a plaintiff chooses to proceed against after a com-
plaint has been stricken for misjoinder properly affords
the plaintiff the latitude to decide which theories of
recovery to pursue against which defendants in that
action and to weigh the risks of proceeding with certain
claims in a separate action.7
Here, Judge Noble concluded that Glory Chapel’s
claims against Philadelphia Indemnity did not arise out
of the same transaction or transactions connected with
the same subject of action as the tort claim against
Bennett. After Judge Noble granted Philadelphia Indem-
nity’s motion to strike, Glory Chapel timely filed a sub-
stitute complaint pursuant to Practice Book §10-44,
which clearly cured the misjoinder defects identified
by the court by omitting any claims against one of the
purportedly misjoined defendants. Contrary to Judge
Sheridan’s conclusion, Glory Chapel’s substitute com-
plaint was not inconsistent with Judge Noble’s decision
striking the counts against Philadelphia Indemnity.
Accordingly, we conclude that the court erred when it
rejected Glory Chapel’s substitute complaint.8
III
Glory Chapel’s final claim is that the trial court
improperly sustained Philadelphia Indemnity’s objec-
tion to the offer of compromise that it filed more than
six months after the trial court rendered judgment in
favor of Philadelphia Indemnity and while this appeal
was pending. It contends that General Statutes § 52-
192a permits a plaintiff to file an offer of compromise
directed to a defendant during the pendency of an
appeal when judgment has already been rendered by
the trial court in favor of that defendant on all counts.
We are not persuaded.
The following procedural history is relevant to this
claim. On October 18, 2021, after the court, Sheridan,
J., rejected Glory Chapel’s substitute complaint, the
court granted Glory Chapel’s motion for judgment and
rendered judgment in favor of Philadelphia Indemnity.
On October 19, 2021, Glory Chapel filed with this court
its appeal of that judgment. On April 25, 2022, while
this appeal was pending, Glory Chapel filed an offer of
compromise in the Superior Court stating that ‘‘[Glory
Chapel] hereby offers to resolve the entirety of its claim
against [Philadelphia Indemnity] by way of compromise
settlement in the sum of [$675,000], including interest
and costs.’’
On May 25, 2022, Philadelphia Indemnity filed an
objection to Glory Chapel’s offer of compromise, arguing
that Glory Chapel’s purported offer of compromise was
invalid because Philadelphia Indemnity was no longer
a defendant in the action, as judgment had been ren-
dered in its favor. Philadelphia Indemnity argued that
there were no claims pending in the litigation against
it to settle and that this was just another attempt by
Glory Chapel to ‘‘cause annoyance, oppression, undue
burden, and expense.’’ Philadelphia Indemnity also
requested that the court award it reasonable attorney’s
fees and costs associated with filing its objection.
On June 13, 2022, the court, Cobb, J., sustained Phila-
delphia Indemnity’s objection to Glory Chapel’s offer
of compromise. On June 16, 2022, Glory Chapel amended
its appeal to include the court’s decision sustaining
Philadelphia Indemnity’s objection to its offer of com-
promise.
Our resolution of this claim turns on an interpretation
of § 52-192a. It is well established that statutory con-
struction is a question of law over which we exercise
plenary review. See, e.g., Larmel v. Metro North Com-
muter Railroad Co., 341 Conn. 332, 339, 267 A.3d 162
(2021); Nunno v. Wixner, 257 Conn. 671, 677, 778 A.2d
145 (2001). ‘‘When construing a statute, [o]ur fundamen-
tal objective is to ascertain and give effect to the appar-
ent intent of the legislature. . . . In other words, we
seek to determine, in a reasoned manner, the meaning
of the statutory language as applied to the facts of [the]
case, including the question of whether the language
actually does apply. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Internal
quotation marks omitted.) Cerame v. Lamont, 346 Conn.
422, 426, 291 A.3d 601 (2023).
Glory Chapel contends that the fundamental purpose
of § 52-192a is to encourage prompt settlements and to
avoid wasting judicial resources. It claims that the plain
language of the statute permits a party to file an offer
of compromise during an appeal from a pretrial ruling
and that prohibiting offers of compromise in such cir-
cumstances would run contrary to the purpose of the
statute. Philadelphia Indemnity disagrees. It claims that
there is no authority supporting Glory Chapel’s claim
that the statute permits a party to file a postjudgment
offer of compromise, and the ‘‘better interpretation’’ is
that § 52-192a forbids it. We agree with Philadelphia
Indemnity and conclude that § 52-192a does not permit
a plaintiff to file an offer of compromise directed to a
defendant for whom judgment has already been ren-
dered.
We begin with the text of § 52-192a. Subsection (a)
of that statute provides in relevant part: ‘‘Except as
provided in subsection (b) of this section, after com-
mencement of any civil action based upon contract or
seeking the recovery of money damages, whether or
not other relief is sought, the plaintiff may, not earlier
than one hundred eighty days after service of process
is made upon the defendant in such action but not later
than thirty days before trial, file with the clerk of the
court a written offer of compromise signed by the plain-
tiff or the plaintiff’s attorney, directed to the defendant
or the defendant’s attorney, offering to settle the claim
underlying the action for a sum certain. . . .’’ General
Statutes § 52-192a (a).
Subsection (a) further provides that, ‘‘[w]ithin thirty
days after being notified of the filing of the offer of
compromise and prior to the rendering of a verdict by
the jury or an award by the court, the defendant or the
defendant’s attorney may file with the clerk of the court
a written acceptance of the offer of compromise agree-
ing to settle the claim underlying the action for the sum
certain specified in the plaintiff’s offer of compromise.
. . . Any such offer of compromise and any acceptance
of the offer of compromise shall be included by the
clerk in the record of the case.’’ General Statutes § 52-
192a (a). Subsection (c) of § 52-192a provides in rele-
vant part that ‘‘[a]fter trial9 the court shall examine the
record to determine whether the plaintiff made an offer
of compromise which the defendant failed to accept.
If the court ascertains from the record that the plaintiff
has recovered an amount equal to or greater than the
sum certain specified in the plaintiff’s offer of compro-
mise, the court shall add to the amount so recovered
eight per cent annual interest on said amount . . . .’’
(Footnote added.)
Glory Chapel contends that because the statute autho-
rizes a plaintiff to file an offer of compromise any time
after 180 days following service of process and up until
thirty days before trial, its April 25, 2022 offer was
timely filed because ‘‘[t]he case obviously has not yet
proceeded to ‘trial’ . . . .’’
Philadelphia Indemnity counters that Glory Chapel
engages in a hyper technical construction of the statute.
It points to the language in § 52-192a (a) stating that a
plaintiff’s offer of compromise is to settle the ‘‘ ‘claim
underlying the action . . . .’ ’’ In Philadelphia Indemni-
ty’s view, after judgment had been rendered for it, there
was no longer any ‘‘claim underlying the action’’ that
could be settled because those claims had already been
resolved in its favor. As a result, it argues that Glory
Chapel’s offer of compromise was invalid and properly
stricken by the court.
Section 52-192a is silent as to whether a plaintiff may
file an offer of compromise after judgment has been
rendered for a defendant on all claims in the trial court
and during the pendency of an appeal. In reviewing
the statute and the parties’ competing arguments, we
conclude that the statute is not clear and unambiguous
on this point. See, e.g., Branford v. Santa Barbara,
294 Conn. 803, 812, 988 A.2d 221 (2010) (‘‘[t]he test to
determine ambiguity is whether the statute, when read
in context, is susceptible to more than one reasonable
interpretation’’ (internal quotation marks omitted)).
Although we often look to the legislative history of
a statute to discern its meaning when its language is
ambiguous, we have found nothing in the legislative
history of § 52-192a that sheds light on the precise ques-
tion presented here. The body of case law interpreting
various provisions of § 52-192a, however, lends some
assistance for present purposes. See Stiffler v. Conti-
nental Ins. Co., 288 Conn. 38, 43, 950 A.2d 1270 (2008)
(‘‘we note that we are not writing on a clean slate as
the purpose and structure of our offer of judgment
statute have been identified’’). To that end, in construing
§ 52-192a, our Supreme Court has explained ‘‘that its
purpose is to encourage pretrial settlements and, conse-
quently, to conserve judicial resources.’’ Blakeslee
Arpaia Chapman, Inc. v. EI Constructors, Inc., 239
Conn. 708, 742, 687 A.2d 506 (1997). ‘‘[T]he strong public
policy favoring the pretrial resolution of disputes . . .
is substantially furthered by encouraging defendants to
accept reasonable offers of judgment.’’ (Internal quota-
tion marks omitted.) Yeager v. Alvarez, 302 Conn. 772,
783, 31 A.3d 794 (2011), citing DiLieto v. County Obstet-
rics & Gynecology Group, P.C., 297 Conn. 105, 153,
998 A.2d 730 (2010). The statute ‘‘encourages fair and
reasonable compromise between litigants by penalizing
a party that fails to accept a reasonable offer of settle-
ment.’’ (Internal quotation marks omitted.) Cardenas
v. Mixcus, 264 Conn. 314, 321, 823 A.2d 321 (2003).
‘‘The statute is admittedly punitive in nature,’’ but ‘‘[i]t
is the punitive aspect of the statute that effectuates
the underlying purpose of the statute and provides the
impetus to settle cases.’’ (Internal quotation marks
omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Con-
structors, Inc., supra, 752, quoting Lutynski v. B. B. &
J. Trucking, Inc., 31 Conn. App. 806, 812–13, 628 A.2d
1 (1993), aff’d, 229 Conn. 525, 642 A.2d 7 (1994). Because
§ 52-192a is punitive in nature, our case law instructs
that ‘‘we are required to construe it with reasonable
strictness . . . .’’ (Emphasis omitted; internal quota-
tion marks omitted.) DiLieto v. County Obstetrics &
Gynecology Group, P.C., supra, 149; see also Barton v.
Norwalk, 163 Conn. App. 190, 218, 135 A.3d 711 (2016),
aff’d, 326 Conn. 139, 161 A.3d 1264 (2017). Indeed, when
ambiguity exists, ‘‘we must interpret it in favor of the
party who would be subject to the punitive conse-
quences of the statute rather than in favor of the party
who would benefit from those consequences.’’ Bran-
ford v. Santa Barbara, supra, 294 Conn. 814–15.
With these principles in mind, and for the reasons that
follow, we conclude that, although § 52-192a permits a
plaintiff to file an offer of compromise not later than
thirty days before trial, it also requires a plaintiff to file
its offer of compromise while claims remain pending
against a defendant in the trial court and prior to the
court rendering judgment in favor of that defendant.
First, as Philadelphia Indemnity points out, the statute
makes clear that an offer of compromise is an offer ‘‘to
settle the claim underlying the action . . . .’’ (Empha-
sis added.) General Statutes § 52-192a (a). Where, as
here, judgment has been rendered for a defendant on
all counts, an offer of compromise directed to such
defendant is not capable of settling the ‘‘claim underly-
ing the action’’ because that claim has already been
resolved in favor of the defendant. In other words, once
a judgment has been rendered for a defendant, there
is no longer a ‘‘claim underlying the action’’ for purposes
of the statute. Furthermore, the statute instructs that
an offer of compromise and a defendant’s written accep-
tance must be filed ‘‘with the clerk of the court’’ and
‘‘shall be included by the clerk in the record of the
case.’’ General Statutes § 52-192a (a). Any written
acceptance of the offer of compromise must be filed
‘‘[w]ithin thirty days after being notified of the filing of
the offer of compromise and prior to the rendering of
a verdict by the jury or an award by the court . . . .’’
(Emphasis added.) General Statutes § 52-192a (a).
These provisions, when read together and construed
with reasonable strictness in favor of the party to whom
an offer of compromise is made; see, e.g., DiLieto v.
County Obstetrics & Gynecology Group, P.C., supra,
297 Conn. 149; contemplate a process of making and
accepting offers of compromise in the trial court prior
to a court’s resolution of the claims that are the subject
of the offer of compromise. As we have explained, the
statute embodies a strong public policy favoring the
pretrial resolution of disputes—that is, resolution of
the claims by the parties before the court or a jury
resolves those claims. Allowing plaintiffs to make offers
of compromise to defendants after judgment has been
rendered for those defendants and while the claims are
on appeal does not serve the purpose of promoting
pretrial resolutions. On the contrary, such an interpre-
tation would require a defendant who has already pre-
vailed in the trial court to accept a postjudgment offer
of compromise in order to avoid the punitive conse-
quences of the statute. Far from promoting the chief
policy goal of the statute, such an interpretation would
expose the party that actually prevailed in the trial court
to the punitive effects of the statute. As noted, our
Supreme Court has held that where there is an ambigu-
ity with respect to the provisions of § 52-192a, ‘‘we must
interpret it in favor of the party who would be subject
to the punitive consequences of the statute rather than
in favor of the party who would benefit from those
consequences.’’ Branford v. Santa Barbara, supra, 294
Conn. 814–15.
We therefore conclude that § 52-192a requires that
an offer of compromise be filed while claims remain
pending against a defendant in the trial court and prior
to the time judgment has been rendered for that defen-
dant. See General Statutes § 52-192a (a). There simply is
no language in the statute suggesting that the legislature
intended to permit a plaintiff to file an offer of compro-
mise directed to a defendant for whom judgment
already has been rendered and while a plaintiff pursues
an appeal of that judgment. In the absence of clear
evidence that the legislature intended offers to be made
in such circumstances, we decline to interpret the stat-
ute in such a manner. See Branford v. Santa Barbara,
supra, 294 Conn. 815 (‘‘in the absence of clear evidence
that the legislature intended the offer of judgment stat-
ute to apply to condemnation appeals prior to 2007, we
cannot impose the consequences of § 52-192a on the
town in the present case’’). Accordingly, we conclude
that the trial court properly sustained Philadelphia
Indemnity’s objection to Glory Chapel’s postjudgment
offer of compromise.10
The judgment is reversed with respect to the order
sustaining Philadelphia Indemnity’s objection to the
substitute complaint and the case is remanded for fur-
ther proceedings consistent with this opinion; the judg-
ment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The complaint also named Kevon Bennett as a defendant. Bennett did
not appear in the trial court and is not participating in this appeal.
2
We note that the subject pleading was actually labeled by the plaintiff
as ‘‘Amended Complaint.’’ However, because Practice Book § 10-44 governs
‘‘Substitute Pleading[s],’’ we refer to the subject complaint throughout this
opinion as the ‘‘substitute complaint’’ to avoid confusion with other rules
of practice pertaining to the amendment or revision of pleadings.
3
We take no position with respect to whether the court properly struck
counts one and two of the original complaint on the basis of misjoinder.
4
We note that Philadelphia Indemnity argues that Glory Chapel did not
properly preserve this claim for appeal because it did not argue in its
opposition to the initial motion to strike that it had the sole right to decide
which defendant to drop from the case. This claim lacks merit. Philadelphia
Indemnity’s argument effectively would require a party opposing a motion
to strike to list all possible responses to an adverse ruling in advance of
the adverse ruling actually being made. We have found no support in our
law for that contention. The record in this case instead shows that Glory
Chapel distinctly raised its right to replead and to remove Bennett instead
of Philadelphia Indemnity in its response to Philadelphia Indemnity’s objec-
tion to its substitute complaint. See Asselin & Vieceli Partnership, LLC v.
Washburn, 194 Conn. App. 519, 524, 221 A.3d 875 (2019) (‘‘[t]he determina-
tion of whether a claim has been properly preserved will depend on a careful
review of the record to ascertain whether the claim on appeal was articulated
[before the trial court] with sufficient clarity to place the trial court on
reasonable notice of that very same claim’’ (internal quotation marks omit-
ted)), cert. denied, 334 Conn. 913, 221 A.3d 449 (2020). Accordingly, we
conclude that Glory Chapel has preserved its claim for appeal.
5
We also note that Philadelphia Indemnity did not request in its motion
that it be dropped from the action. Rather, Philadelphia Indemnity’s motion
to strike provided in relevant part: ‘‘WHEREFORE, [Philadelphia Indemnity]
respectfully requests that the court strike the first and second counts of
. . . Glory Chapel’s complaint for misjoinder.’’
6
General Statutes § 52-108 provides: ‘‘An action shall not be defeated by
the nonjoinder or misjoinder of parties. New parties may be added and
summoned in, and parties misjoined may be dropped, by order of the court,
at any stage of the action, as the court deems the interests of justice require.’’
7
During oral argument before this court, counsel for Philadelphia Indem-
nity conceded that if Philadelphia Indemnity and Bennett had both filed
motions to strike for misjoinder, and both had been granted, Glory Chapel
would have been entitled to replead against either one of the defendants.
See, e.g., John’s Refuse & Recycling, LLC v. For Like, LLC, Superior Court,
judicial district of New Haven, Docket No. CV-XX-XXXXXXX-S (May 10, 2016)
(62 Conn. L. Rptr. 302, 303) (‘‘I hereby order that the plaintiff file an amended
complaint removing five of the six named defendants from the action. The
plaintiff may proceed in this lawsuit with its claims against one of the
named defendants.’’). We see no logical basis for adopting a rule that would
arbitrarily reward a defendant that first moves to strike a complaint to the
detriment of another defendant that elects instead to file other requests or
motions, such as a request to revise or motions to dismiss, which our rules
of practice require be filed prior to the filing of a motion to strike.
8
In light of our disposition, we need not address Glory Chapel’s additional
claim that the trial court erred by denying its motion to reargue the court’s
decision sustaining Philadelphia Indemnity’s objection to the substitute com-
plaint. See Doe v. West Hartford, 168 Conn. App. 354, 359 n.5, 147 A.3d 1083
(2016), aff’d, 328 Conn. 172, 177 A.3d 1128 (2018).
9
In Tureck v. George, 44 Conn. App. 154, 162, 687 A.2d 1309, cert. denied,
240 Conn. 914, 691 A.2d 1080 (1997), this court concluded that the term
‘‘after trial’’ in § 52-192a (b) means after a ‘‘final judgment,’’ holding that a
plaintiff is not entitled to obtain prejudgment interest until after a final
judgment has been rendered.
10
Nothing in this opinion should be construed to prohibit Glory Chapel
from filing a timely offer of compromise on remand, at which time its claims
against Philadelphia Indemnity will have been restored by virtue of our
decision in this appeal.