Marciano v. Piel

579 A.2d 539, 22 Conn. App. 627, 1990 Conn. App. LEXIS 288

• Court: Connecticut Appellate Court
• Decided: August 21, 1990
• Docket: 7648
• Status: Published

Opinions

O'Connell, J.

The defendants appeal from the judgment of mandamus compelling the defendants, Helen Bray, the zoning enforcement officer of the town of Sherman, and William Piel, the chairman of the Sherman planning and zoning commission, to issue a zoning permit to the plaintiff. The plaintiff had sought the permit in order to construct a house on property he owned in Sherman. When his application was denied, the plaintiff filed this action seeking a mandamus. The dispositive question on appeal is whether the trial court should have proceeded to judgment in the absence of any pleadings other than a complaint. We conclude that it should not have done so, and, accordingly, we reverse.

An action for mandamus is a lawsuit like any other lawsuit. See Knibbs v. Knibbs Construction, Inc., 25 Conn. Sup. 253, 255, 202 A.2d 248 (1964). Practice Book § 542 requires that a mandamus action commence with service of a writ and complaint as in other civil actions,¹ and Practice Book § 545, with an exception discussed infra, provides for the filing of the full panoply of pleadings available in any other civil action until the issues are joined.² In addition, case law has long dictated that the general rules of pleading apply in a mandamus proceeding. See Brainard v. Staub, 61 Conn. 570, 575, 24 A. 1040 (1892).

In the present case, the defendants were served with the complaint on October 20,1988,³ and the trial commenced twelve days later on October 31. The defendants were given no opportunity to file motions addressed to the complaint, motions for disclosure and production, an answer, special defenses or any of the other pleadings allowed in our civil practice. Moreover, the summary fashion in which these defendants were placed on trial completely emasculates the orderly procedure for claiming cases for trial set out in Practice Book §§ 252 through 261.

Mandamus actions clearly come within the scope of these rules. For example, § 259 includes a mandamus action among those matters privileged in respect to assignment for trial. It is thirteenth in priority on the list of twenty categories of privileged cases. If the pleadings are not closed, a case may not even be placed on the trial list, let alone be brought to trial. Wooding v. Zasciurinskas, 14 Conn. App. 164, 166, 540 A.2d 93 (1988).

Practice Book § 543 provides that an application for mandamus may be made in a pending action.⁴ Practice Book § 545 establishes an exception to § 543. Section 545 provides that “where an application for an order [in the nature of mandamus] is made in aid of a pending action, the extent to which and the time in which the respondent may plead shall be as directed by the court.” (Emphasis added.) This partial relaxation of the pleading rules is clearly not applicable in the present case where there is neither an allegation nor a finding that the proceeding is in aid of a pending action.

The plaintiff argues that his complaint sufficiently apprises the court of the facts necessary for the matter to be heard. This self-serving representation ignores the simple fact that “[i]t is impossible to determine what issues are decisive of the merits without benefit of an answer, and perhaps further pleadings such as special defenses and replies thereto.” Wooding v. Zasciurinskas, supra. “Pleadings have their place in our system of jurisprudence. 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 administration of justice is possible without them.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952). Proceeding to trial and final judgment⁵ in the total absence of pleading⁶ is a procedure unknown to our law. See Doublewal Corporation v. Toffolon, 195 Conn. 384, 390-91, 488 A.2d 444 (1985).

Finally, we are satisfied that the defendants properly brought their arguments regarding the state of the pleadings to the trial court’s attention during the course of the trial and in their posttrial brief, thereby satisfying Practice Book § 285A.^{7 8}Even if this claim had not been raised in any manner in the trial court, that court’s proceeding in the absence of pleadings is such a radical departure from our rules of practice that we would consider it plain error under Practice Book § 4185.®

In view of our disposition of this issue, we do not reach the other questions raised on appeal, because it is not known whether the same issues will arise on retrial. We cannot forecast the nature of the pleadings that will be filed. Thus, we cannot speculate as to the issues of fact and law that may be raised when the pleadings are closed and the issues joined. Wooding v. Zasciurinskas, supra.

We turn now to the question of the proper disposition of this appeal. The complaint was apparently served without an accompanying writ. Consequently, the file does not contain the type of recognizance mandated by Practice Book § 542.⁹ We could dismiss the case, which would require that an entirely new action be instituted. However, “ ‘[t]he public’s interest in avoiding unnecessary litigation and conserving scarce judicial resources is too powerful a factor to ignore.’ ” Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 68, 504 A.2d 1376, cert. denied, 199 Conn. 807, 808, 508 A.2d 769 (1986). Accordingly, we elect to exercise our general supervisory powers under Practice Book § 4183, and remand the case to the trial court with instruction that the plaintiff file an appropriate recognizance. The parties may then continue with the normal course of pleadings until the issues are joined and a trial on the merits is possible.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Dupont, C. J., concurred.

1 Practice Book § 542 provides: “The writ and complaint in an original action shall be in the form used in, and served as are, ordinary civil actions, but with a distinct statement in the prayer for relief that an order in the nature of a mandamus is sought. No affidavit to the truth of the allegations of the complaint is required, and no bond or recognizance is necessary other than that ordinarily used in civil actions; and no bond or recognizance shall be required where the action is brought by a state’s attorney.”

2 Practice Book § 545 provides: “The defendant may file any proper motion directed to the allegations of the complaint, or, if he desires to attack their legal sufficiency in law, a motion to strike, or a return in the form of an answer, and further pleadings shall continue as in civil actions until issues are joined, provided that, where an application for an order is made in a pending action, the extent to which and the time in which the respondent may plead shall be as directed by the court.” (Emphasis added.)

3 The file does not contain an original writ, although a sheriffs return form indicates that one was served on the defendants on October 20,1988.

4 Practice Book § 543 provides: “An order in the nature of a mandamus may be made in aid of a pending action upon the application of any party, and any person claimed to be charged with the duty of performing the act in question may be summoned before the court by the service upon him of a rule to show cause.” (Emphasis added.)

5 We recognize that emergency situations allow hearings on such matters as temporary injunctions and temporary mandamuses without closing the pleadings. These are not, however, final judgments and are followed by full trials after a complete course of pleadings. The parties and the trial court are in agreement that Practice Book § 544 does not apply because a temporary order of mandamus was not sought.

6 The present case is not analogous to situations in which pleadings exist but have been drawn in a slovenly fashion; Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990); or in which, by intention or oversight, an answer fails to respond to one or more paragraphs of a complaint. Worden v. Francis, 153 Conn. 578, 584, 219 A.2d 442 (1966); Williamson, Ltd. v. Perry, 111 Conn. 317, 324, 150 A. 17 (1930).

7 The pertinent part of Practice Book § 285A provides: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief.”

8 The pertinent part of Practice Book § 4185 provides: “The [appellate] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court.”

9 The file includes a surety bond of the type required for a temporary mandamus. That bond is defective, however, because plaintiffs counsel signed as the surety. Practice Book § 542.