third special defense in Connecticut

1995Magnan v. Anaconda Industries, Inc., 193 Conn. 538 , 567 , 479 A.2d 781 (1984); Warner v. Konover, 210 Conn. 150 , 154 , 553 A.2d 1138 (1989).

1995The basis of that argument is the well-known case of Warner v. Konover , 210 Conn. 150 , (1989).

1994The plaintiffs' motion for summary judgment contends that there is no genuine issue of material fact relating to the execution by Food Store of the promissory note dated July 25, 1985, and the guarantee thereof by the Waldorfs, and that the defendants executed a stipulation in 1988 settling all the disputes between them arising out of the sale of the business purchased by the defendants. "[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to

1994The plaintiffs' motion for summary judgment contends that there is no genuine issue of material fact relating to the execution by Food Store of the promissory note dated July 25, 1985, and the guarantee thereof by the Waldorfs, and that the defendants executed a stipulation in 1988 settling all the disputes between them arising out of the sale of the business purchased by the defendants. "[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to

1999Practice Book § 17-44, however, does not provide for summary judgment as to special defenses. 1 The real issue concerning these motions for summary judgment is in regard to the third special defense which states that: “Plaintiff is barred from recovery because at the time of the accident he was using a car without the permission of the owner.” II STANDARD OF REVIEW “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a m

1999Practice Book § 17-44, however, does not provide for summary judgment as to special defenses. 1 The real issue concerning these motions for summary judgment is in regard to the third special defense which states that: “Plaintiff is barred from recovery because at the time of the accident he was using a car without the permission of the owner.” II STANDARD OF REVIEW “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a m

1999Practice Book § 17-44, however, does not provide for summary judgment as to special defenses. 1 The real issue concerning these motions for summary judgment is in regard to the third special defense which states that: “Plaintiff is barred from recovery because at the time of the accident he was using a car without the permission of the owner.” II STANDARD OF REVIEW “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a m

1999Practice Book § 17-44, however, does not provide for summary judgment as to special defenses. 1 The real issue concerning these motions for summary judgment is in regard to the third special defense which states that: “Plaintiff is barred from recovery because at the time of the accident he was using a car without the permission of the owner.” II STANDARD OF REVIEW “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a m

1998The third special defense states: "The note and mortgage deed given the Defendants by the Plaintiff was the result of the Plaintiff's fraudulent and deceptive actions which constitute a breach of its implied covenant of good faith and fair dealing." "Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectation of the other party. . . ." Magnan v. Anaconda Industries, Inc. , 193 Conn. 558 , 566 , 479 A.2d 781 (1984), citing Restatement (Second) Contracts § 205 (1979).

1998The third special defense states: "The note and mortgage deed given the Defendants by the Plaintiff was the result of the Plaintiff's fraudulent and deceptive actions which constitute a breach of its implied covenant of good faith and fair dealing." "Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectation of the other party. . . ." Magnan v. Anaconda Industries, Inc. , 193 Conn. 558 , 566 , 479 A.2d 781 (1984), citing Restatement (Second) Contracts § 205 (1979).

1998Like the second special defense, the third special defense fails to allege any facts in support, and consists of the bare legal conclusion that "[t]he plaintiff comes before this Court of equity with unclean hands." Moreover, "[t]he defense of unclean hands to a mortgage foreclosure has generally been disallowed in this state." Mechanics Farmers Savings Bank, FSB v. Delco Development Co., 43 Conn. Sup. 408 , 420 , 656 A.2d 1075 (1993), aff'd, 232 Conn. 594 , 656 A.2d 1034 (1995).

1998Like the second special defense, the third special defense fails to allege any facts in support, and consists of the bare legal conclusion that "[t]he plaintiff comes before this Court of equity with unclean hands." Moreover, "[t]he defense of unclean hands to a mortgage foreclosure has generally been disallowed in this state." Mechanics Farmers Savings Bank, FSB v. Delco Development Co., 43 Conn. Sup. 408 , 420 , 656 A.2d 1075 (1993), aff'd, 232 Conn. 594 , 656 A.2d 1034 (1995).

1998Like the second special defense, the third special defense fails to allege any facts in support, and consists of the bare legal conclusion that "[t]he plaintiff comes before this Court of equity with unclean hands." Moreover, "[t]he defense of unclean hands to a mortgage foreclosure has generally been disallowed in this state." Mechanics Farmers Savings Bank, FSB v. Delco Development Co., 43 Conn. Sup. 408 , 420 , 656 A.2d 1075 (1993), aff'd, 232 Conn. 594 , 656 A.2d 1034 (1995).

1998Like the second special defense, the third special defense fails to allege any facts in support, and consists of the bare legal conclusion that "[t]he plaintiff comes before this Court of equity with unclean hands." Moreover, "[t]he defense of unclean hands to a mortgage foreclosure has generally been disallowed in this state." Mechanics Farmers Savings Bank, FSB v. Delco Development Co., 43 Conn. Sup. 408 , 420 , 656 A.2d 1075 (1993), aff'd, 232 Conn. 594 , 656 A.2d 1034 (1995).

1997The first and second special defenses were unchanged by the amendment, which only added the third special defense, as the defendant claimed that it felt itself obliged to do by the decision in Bennett, supra. CT Page 222 Although the motion to strike the first special defense appears untimely on its face, this court does have discretion to permit a late pleading, and under the circumstances of this case, this court believes that it should exercise its discretion in favor of the plaintiff.

1994The plaintiff's request to revise seeks to eliminate everything that follows "$300,000," starting with the word "less." The plaintiff argues that that part of the defendant's third special defense should be deleted because it is "unnecessary since reduction for collateral source benefits is done by the court post-verdict. [The part to be deleted] is also specifically prohibited by Connecticut Practice Book § 195A." In its amended objection to the plaintiff's request to revise its third special defense, the defendant argues that credits and set-offs are not collateral source benefits under "Tor

2021We agree with the trial court. ‘‘Because a challenge to the jurisdiction of the court presents a question of law, our review of the court’s legal conclusion is plenary.’’ (Internal quotation marks omitted.) Hunter v. Shrestha, 195 Conn. App. 393 , 397– 98, 225 A.3d 285 (2020).

2018Relying on 225 Associates v. Connecticut Housing Finance Authority , supra, 65 Conn. App. at 121 , 782 A.2d 189 , the court instead focused its analysis on the question of whether the defendant's allegation arose out of the same transaction as that described in the plaintiff's complaint.

2018Relying on 225 Associates v. Connecticut Housing Finance Authority , supra, 65 Conn. App. at 121 , 782 A.2d 189 , the court instead focused its analysis on the question of whether the defendant's allegation arose out of the same transaction as that described in the plaintiff's complaint.

2018After the plaintiff filed this appeal, it filed a motion for articulation requesting, inter alia, that the trial court clarify the basis for its determination that the third special defense constituted a counterclaim and that it articulate "the basis for its determination that the court had jurisdiction to review the [d]efendant's special defenses when the matter had been withdrawn as of right under ... § 52-80 and a counterclaim had not been alleged in the [d]efendant's operable [a]nswer prior to the withdrawal." More specifically, "[a] set-off is made where the defendant has a debt against t

2018After the plaintiff filed this appeal, it filed a motion for articulation requesting, inter alia, that the trial court clarify the basis for its determination that the third special defense constituted a counterclaim and that it articulate "the basis for its determination that the court had jurisdiction to review the [d]efendant's special defenses when the matter had been withdrawn as of right under ... § 52-80 and a counterclaim had not been alleged in the [d]efendant's operable [a]nswer prior to the withdrawal." More specifically, "[a] set-off is made where the defendant has a debt against t

2018After the plaintiff filed this appeal, it filed a motion for articulation requesting, inter alia, that the trial court clarify the basis for its determination that the third special defense constituted a counterclaim and that it articulate "the basis for its determination that the court had jurisdiction to review the [d]efendant's special defenses when the matter had been withdrawn as of right under ... § 52-80 and a counterclaim had not been alleged in the [d]efendant's operable [a]nswer prior to the withdrawal." More specifically, "[a] set-off is made where the defendant has a debt against t

2018After the plaintiff filed this appeal, it filed a motion for articulation requesting, inter alia, that the trial court clarify the basis for its determination that the third special defense constituted a counterclaim and that it articulate "the basis for its determination that the court had jurisdiction to review the [d]efendant's special defenses when the matter had been withdrawn as of right under ... § 52-80 and a counterclaim had not been alleged in the [d]efendant's operable [a]nswer prior to the withdrawal." More specifically, "[a] set-off is made where the defendant has a debt against t

2014Additionally, the court viewed as ‘‘intertwined’’ the defendant’s third special defense, namely, that the plaintiff’s mortgage was without value and would have been foreclosed out in the prior foreclosure action, and the defendant’s counterclaim based on § 49-30.6 Viewing the third spe- cial defense and counterclaim as such, the court rejected them based principally on the case of Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219 , 896 A.2d 797 (2006).

2014Additionally, the court viewed as ‘‘intertwined’’ the defendant’s third special defense, namely, that the plaintiff’s mortgage was without value and would have been foreclosed out in the prior foreclosure action, and the defendant’s counterclaim based on § 49-30.6 Viewing the third spe- cial defense and counterclaim as such, the court rejected them based principally on the case of Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219 , 896 A.2d 797 (2006).

2002The third special defense does allege that the plaintiffs claims are barred as to "some or all of the defendants" and that, in the present case, one of the defendants probably did not employ the plaintiff "If the motion attacks the entire pleading, [however,] it will fail if any part of the pleading is legally sufficient." Grier v. West Haven Police Department , 40 Conn. Sup. 221 , 222 , 487 A.2d 576 (1984), aff'd., 8 Conn. App. 142 , 510 A.2d 1376 (1986) (Per Curiam).

2002The third special defense does allege that the plaintiffs claims are barred as to "some or all of the defendants" and that, in the present case, one of the defendants probably did not employ the plaintiff "If the motion attacks the entire pleading, [however,] it will fail if any part of the pleading is legally sufficient." Grier v. West Haven Police Department , 40 Conn. Sup. 221 , 222 , 487 A.2d 576 (1984), aff'd., 8 Conn. App. 142 , 510 A.2d 1376 (1986) (Per Curiam).

2002With respect to the allegations of unconscionableness raised in the sixth special defense, the appellate court has held that "[t]he basic test [of unconscionability] is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract." (Citations omitted; internal quotation marks omitted.) Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754 , 763 , 677 A.2d 479 (1996).

2002With respect to the allegations of unconscionableness raised in the sixth special defense, the appellate court has held that "[t]he basic test [of unconscionability] is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract." (Citations omitted; internal quotation marks omitted.) Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754 , 763 , 677 A.2d 479 (1996).

2002The third special defense does allege that the plaintiffs claims are barred as to "some or all of the defendants" and that, in the present case, one of the defendants probably did not employ the plaintiff "If the motion attacks the entire pleading, [however,] it will fail if any part of the pleading is legally sufficient." Grier v. West Haven Police Department , 40 Conn. Sup. 221 , 222 , 487 A.2d 576 (1984), aff'd., 8 Conn. App. 142 , 510 A.2d 1376 (1986) (Per Curiam).

2002The third special defense does allege that the plaintiffs claims are barred as to "some or all of the defendants" and that, in the present case, one of the defendants probably did not employ the plaintiff "If the motion attacks the entire pleading, [however,] it will fail if any part of the pleading is legally sufficient." Grier v. West Haven Police Department , 40 Conn. Sup. 221 , 222 , 487 A.2d 576 (1984), aff'd., 8 Conn. App. 142 , 510 A.2d 1376 (1986) (Per Curiam).

2000The third special defense alleges that the "Town of Middlebury is governmentally immune from claims of negligence in the performance of a governmental function." (Answer and Special Defenses to Amended Complaint, p. 10). "[G]overnmental immunity must be raised as a special defense in the defendant's pleadings." Westport Taxi Service v. Westport Transit District , 235 Conn. 1 , 24 , 664 A.2d 719 (1995).

2000The third special defense alleges that the "Town of Middlebury is governmentally immune from claims of negligence in the performance of a governmental function." (Answer and Special Defenses to Amended Complaint, p. 10). "[G]overnmental immunity must be raised as a special defense in the defendant's pleadings." Westport Taxi Service v. Westport Transit District , 235 Conn. 1 , 24 , 664 A.2d 719 (1995).

1999THIRD SPECIAL DEFENSE In the third special defense, the defendants argue that when the parties contracted the note, they did not foresee the events which would lead to the defendants' inability to repay the note CT Page 2245 The defendants argue that those "unforeseen occurrences, the nonoccurrence which were basic assumptions on which the mortgage contract was made, have rendered performance of the mortgage contract impracticable." The substitute plaintiff moves to strike the third special defense on the ground that is "legally insufficient because the Defendants have failed to allege suffici

1999THIRD SPECIAL DEFENSE In the third special defense, the defendants argue that when the parties contracted the note, they did not foresee the events which would lead to the defendants' inability to repay the note CT Page 2245 The defendants argue that those "unforeseen occurrences, the nonoccurrence which were basic assumptions on which the mortgage contract was made, have rendered performance of the mortgage contract impracticable." The substitute plaintiff moves to strike the third special defense on the ground that is "legally insufficient because the Defendants have failed to allege suffici

1999"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. " City v. Dana Investment Corporation , 249 Conn. 1 , 17 (1999).

1999Federal Deposit Insurance Corporation v. Retirement Management Group Inc., 31 Conn. App. 80 (1993).

1999"Notices of default and acceleration are controlled by the mortgage documents." (Internal quotation marks omitted.), Connecticut Housing Finance Authority v. John Fitch Court Associates , 49 Conn. App. 142 , 149 , affirmed, 246 Conn. 908 , (1998).

1999Dougherty v. Graham, 161 Conn. 248, 250 , 287 A.2d 382 (1971).

1999Dougherty v. Graham, 161 Conn. 248, 250 , 287 A.2d 382 (1971).

1998As an initial matter, the court notes that "[b]ecause the [plaintiffs] did not specify the distinct reasons for the claimed insufficiency of the [defendants' special defense] in its motion, the motion [is] `fatally defective' under Practice Book § 154 notwithstanding the [plaintiffs'] inclusion of such reasons in its supporting memorandum." (Emphasis added.) Bouchard v. People's Bank , 219 Conn. 465 , 473 n. 4, 594 A.2d 1 (1991).

1998As an initial matter, the court notes that "[b]ecause the [plaintiffs] did not specify the distinct reasons for the claimed insufficiency of the [defendants' special defense] in its motion, the motion [is] `fatally defective' under Practice Book § 154 notwithstanding the [plaintiffs'] inclusion of such reasons in its supporting memorandum." (Emphasis added.) Bouchard v. People's Bank , 219 Conn. 465 , 473 n. 4, 594 A.2d 1 (1991).

1998Gordon v. Bridgeport Housing Authority , 208 Conn. 161 , 170 (1988); Kolaniak v. Board of Education , 28 Conn. App. 277 , 279 (1992).

1998Gordon v. Bridgeport Housing Authority , 208 Conn. 161 , 170 (1988); Kolaniak v. Board of Education , 28 Conn. App. 277 , 279 (1992).