fifth special defense in Connecticut

1995Corp., 315 U.S. 447 , 62 S. Ct. 676 , 86 L.

1995Corp., 315 U.S. 447 , 62 S. Ct. 676 , 86 L.

1946"Parties cannot be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings." Goldberg v. Kaplan, 101 Conn. 432 , 438 ; Hillyer v. Winsted, 77 Conn. 304 , 306 .

1946“Parties cannot be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings.” Goldberg v. Kaplan, 101 Conn. 432, 438 ; Hillyer v. Winsted, 77 Conn. 304, 306 .

1946"Parties cannot be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings." Goldberg v. Kaplan, 101 Conn. 432 , 438 ; Hillyer v. Winsted, 77 Conn. 304 , 306 .

1946“Parties cannot be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings.” Goldberg v. Kaplan, 101 Conn. 432, 438 ; Hillyer v. Winsted, 77 Conn. 304, 306 .

2006The court advised: “[Fountain Co. v. Stein, 97 Conn. 619 , 118 A. 47 (1922)], says [the power company] has properly terminated the lease. [The power company] was within their rights to terminate the lease. [The power company] did not waive. [The power company] did everything in accordance with the lease terms and terminated the lease fairly, properly and . . . yet [Fountain Co.] says [that the court] can reinstate the lease on equitable grounds because it’s not fair that they rely on the technicality.” The fifth special defense alleged as follows: “Assuming, arguendo, that the [power company]

2006The court advised: “[Fountain Co. v. Stein, 97 Conn. 619 , 118 A. 47 (1922)], says [the power company] has properly terminated the lease. [The power company] was within their rights to terminate the lease. [The power company] did not waive. [The power company] did everything in accordance with the lease terms and terminated the lease fairly, properly and . . . yet [Fountain Co.] says [that the court] can reinstate the lease on equitable grounds because it’s not fair that they rely on the technicality.” The fifth special defense alleged as follows: “Assuming, arguendo, that the [power company]

2001The motion "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576 , 588 , 693 A.2d 293 (1997); see also Practice Book § 10-39 . 3 In ruling on a motion to strike special defenses, the court must "take the facts to be those alleged in the special defenses and . . . construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530 , 536 , 6

2001The motion "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576 , 588 , 693 A.2d 293 (1997); see also Practice Book § 10-39 . 3 In ruling on a motion to strike special defenses, the court must "take the facts to be those alleged in the special defenses and . . . construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530 , 536 , 6

2001On September 15, 2000, the plaintiffs filed a motion to strike the fifth special defense on the ground that the defense is legally insufficient because the defendants waived the claims set forth in the defense by failing to file a motion to dismiss within the thirty day requirement set forth in Practice Book §§ 10-32 1 and 10-30 . 2 The defendants argue, in support of their objection to the motion, that because substantial implications of due process are raised by the special defense, the issues should be ruled upon in due course and not in a procedural matter. "[A] motion to strike challenges

2001On September 15, 2000, the plaintiffs filed a motion to strike the fifth special defense on the ground that the defense is legally insufficient because the defendants waived the claims set forth in the defense by failing to file a motion to dismiss within the thirty day requirement set forth in Practice Book §§ 10-32 1 and 10-30 . 2 The defendants argue, in support of their objection to the motion, that because substantial implications of due process are raised by the special defense, the issues should be ruled upon in due course and not in a procedural matter. "[A] motion to strike challenges

2001Co ., 46 Conn. Sup. 188 , 190 , 742 A.2d 174 (1999), the defendant properly pleaded policy limitation in the first special defense, however, the second special defense was not a policy limitation but rather a collateral source payment.

2001Co ., 46 Conn. Sup. 188 , 190 , 742 A.2d 174 (1999), the defendant properly pleaded policy limitation in the first special defense, however, the second special defense was not a policy limitation but rather a collateral source payment.

2000Accord and Satisfaction (Sixth Special Defense) The defendants argue that accord and satisfaction bars Riverbend's action. "[A]ccord and satisfaction occurs when a debtor renders performance different from that allegedly due his creditor and the creditor accepts the substituted performance in full satisfaction of the disputed claim ." (Emphasis in original; internal quotation marks omitted.) CT Page 6719 Munroe v. Emhart Corp. , 46 Conn. App. 37 , 43-44 , 699 A.2d 213 , cert. denied, 243 Conn. 926 , 701 A.2d 658 (1997).

2000Accord and Satisfaction (Sixth Special Defense) The defendants argue that accord and satisfaction bars Riverbend's action. "[A]ccord and satisfaction occurs when a debtor renders performance different from that allegedly due his creditor and the creditor accepts the substituted performance in full satisfaction of the disputed claim ." (Emphasis in original; internal quotation marks omitted.) CT Page 6719 Munroe v. Emhart Corp. , 46 Conn. App. 37 , 43-44 , 699 A.2d 213 , cert. denied, 243 Conn. 926 , 701 A.2d 658 (1997).

2000"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Citation omitted; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates , 244 Conn. 269 , 270 (1998).

2000Accord and Satisfaction (Sixth Special Defense) The defendants argue that accord and satisfaction bars Riverbend's action. "[A]ccord and satisfaction occurs when a debtor renders performance different from that allegedly due his creditor and the creditor accepts the substituted performance in full satisfaction of the disputed claim ." (Emphasis in original; internal quotation marks omitted.) CT Page 6719 Munroe v. Emhart Corp. , 46 Conn. App. 37 , 43-44 , 699 A.2d 213 , cert. denied, 243 Conn. 926 , 701 A.2d 658 (1997).

2000Accord and Satisfaction (Sixth Special Defense) The defendants argue that accord and satisfaction bars Riverbend's action. "[A]ccord and satisfaction occurs when a debtor renders performance different from that allegedly due his creditor and the creditor accepts the substituted performance in full satisfaction of the disputed claim ." (Emphasis in original; internal quotation marks omitted.) CT Page 6719 Munroe v. Emhart Corp. , 46 Conn. App. 37 , 43-44 , 699 A.2d 213 , cert. denied, 243 Conn. 926 , 701 A.2d 658 (1997).

1999Nowak v. Nowak , 175 Conn. 112 , 116 , 394 A.2d 716 (1973); see also Connecticut National Bank v. Voog , 233 Conn. 352 , 354-551 659 A.2d 172 (1995).

1999Nowak v. Nowak , 175 Conn. 112 , 116 , 394 A.2d 716 (1973); see also Connecticut National Bank v. Voog , 233 Conn. 352 , 354-551 659 A.2d 172 (1995).

1999General Statutes § 52-557n (b)(6) The plaintiffs contend the Supreme Court's recent decision in Elliot v. Waterbury , supra, 245 Conn. 385 (1998), renders the sixth special defense legally insufficient.

1999General Statutes § 52-557n (b)(6) The plaintiffs contend the Supreme Court's recent decision in Elliot v. Waterbury , supra, 245 Conn. 385 (1998), renders the sixth special defense legally insufficient.

1997It purports to allege an abuse CT Page 1938 of process, which has been held to be "an improper matter for adjudication in a foreclosure action because the "counterclaim sounds in tort and its subject matter has no connection with the making, validity or enforcement of the mortgage." Connecticut Savings Bank v. Reilly, 12 Conn. Sup. 328 (1944) The plaintiff's motion to strike the third count of the counterclaim is granted.

1996The plaintiff points to General Statutes § 52-5721, which provides that, "In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery. . ." In Norrie v. Heil Co., 203 Conn. 594 , 600 (1987), our Supreme Court held that this statutory provision "eliminated contributory negligence as a defense to a products liability action." As was noted in Greenwood v. Eastman Kodak Co., No. CV92-0452919S 11 Conn. L.

1996"It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." Cannata v. Department of Environmental Protection, 215 Conn. 616 , 622 , 577 A.2d 1017 (1990).

1996"It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." Cannata v. Department of Environmental Protection, 215 Conn. 616 , 622 , 577 A.2d 1017 (1990).

1995"Reformation is appropriate in cases of mutual mistake — that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction. . . . [R]eformation is also available in equity when the instrument does not express the true intent of the parties owing to mistake of one party coupled with fraud, actual or constructive, or inequitable conduct on the part of the other." (Citations omitted.) Harlach v. Metropolitan Property Liability Ins

1995"Reformation is appropriate in cases of mutual mistake — that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction. . . . [R]eformation is also available in equity when the instrument does not express the true intent of the parties owing to mistake of one party coupled with fraud, actual or constructive, or inequitable conduct on the part of the other." (Citations omitted.) Harlach v. Metropolitan Property Liability Ins

1995Id.

1993In the fifth special defense, the defendants, citing Union Trust Co. v. Heggelund, 219 Conn. 620 (1990), assert that a judgment lien relating back to the prejudgment attachment cannot be for an amount greater than the attachment.

1993The plaintiff moves to strike the fifth special defense on the grounds that (1) the failure to appeal the invalidation of the antenuptial agreement cannot estop the plaintiff from pursuing a malpractice action against defendant Greenwald, and (2) defendant Greenwald has failed to plead sufficient facts to establish a defense of estoppel. "`Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, as against another person, who has in good faith relied upon

1993The plaintiff moves to strike the fifth special defense on the grounds that (1) the failure to appeal the invalidation of the antenuptial agreement cannot estop the plaintiff from pursuing a malpractice action against defendant Greenwald, and (2) defendant Greenwald has failed to plead sufficient facts to establish a defense of estoppel. "`Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, as against another person, who has in good faith relied upon

1993The plaintiff moves to strike the fifth special defense on the grounds that (1) the failure to appeal the invalidation of the antenuptial agreement cannot estop the plaintiff from pursuing a malpractice action against defendant Greenwald, and (2) defendant Greenwald has failed to plead sufficient facts to establish a defense of estoppel. "`Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, as against another person, who has in good faith relied upon

1993The plaintiff moves to strike the fifth special defense on the grounds that (1) the failure to appeal the invalidation of the antenuptial agreement cannot estop the plaintiff from pursuing a malpractice action against defendant Greenwald, and (2) defendant Greenwald has failed to plead sufficient facts to establish a defense of estoppel. "`Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, as against another person, who has in good faith relied upon

1993CT Page 9759 The defendants' memorandum in opposition to the motion to strike relies heavily on the United States Supreme Court case Cipollone v. Liggett Group, Inc., ___ U.S. ___, 112 S.Ct. 2608 (1992) for their claim that FIFRA, 7 U.S.C. § 135 et seq. preempts the plaintiffs' state product liability claim.

1993The plaintiff moves to strike the fifth special defense on the grounds that (1) the failure to appeal the invalidation of the antenuptial agreement cannot estop the plaintiff from pursuing a malpractice action against defendant Greenwald, and (2) defendant Greenwald has failed to plead sufficient facts to establish a defense of estoppel. "`Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, as against another person, who has in good faith relied upon

1993The plaintiff moves to strike the fifth special defense on the grounds that (1) the failure to appeal the invalidation of the antenuptial agreement cannot estop the plaintiff from pursuing a malpractice action against defendant Greenwald, and (2) defendant Greenwald has failed to plead sufficient facts to establish a defense of estoppel. "`Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, as against another person, who has in good faith relied upon

1993The plaintiff moves to strike the fifth special defense on the grounds that (1) the failure to appeal the invalidation of the antenuptial agreement cannot estop the plaintiff from pursuing a malpractice action against defendant Greenwald, and (2) defendant Greenwald has failed to plead sufficient facts to establish a defense of estoppel. "`Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, as against another person, who has in good faith relied upon

1993The plaintiff moves to strike the fifth special defense on the grounds that (1) the failure to appeal the invalidation of the antenuptial agreement cannot estop the plaintiff from pursuing a malpractice action against defendant Greenwald, and (2) defendant Greenwald has failed to plead sufficient facts to establish a defense of estoppel. "`Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, as against another person, who has in good faith relied upon

1991See Stowe v. Smith, 184 Conn. 194 , 197 ; Knapp v. New Haven Road Construction Co., 150 Conn. 321 , 326 .