Home   |   Contact Us   |   Sign In   |   Register
Article Library
Blog Home All Blogs
Search all posts for:   


View all (778) posts »

Connecticut: Distinction between “Special Defense” and “Counterclaim” affects Restoration of a Withdrawn Case to the Court’s Docket

Posted By USFN, Wednesday, October 17, 2018
Updated: Tuesday, October 16, 2018

October 17, 2018

by Peter A. Ventre
McCalla Raymer Leibert Pierce, LLC – USFN Member (Connecticut)

In Sovereign Bank v. Harrison, 184 Conn. App. 436 (Aug. 28, 2018), the trial court had restored a withdrawn foreclosure action to the court docket based on the defendant’s contention that she had a pending counterclaim, even though none had been pled at the time of the withdrawal. Rather, the defendant pointed to a special defense, which she then asserted was meant as a counterclaim. The appellate court reversed and remanded the case for the motion to restore to be denied.

Prior to the scheduled trial date, the plaintiff withdrew its foreclosure action (subsequently commencing a foreclosure action in federal court). At that time the defendant had filed special defenses only, not any counterclaim. After the withdrawal, the defendant filed a motion to amend her answer to include a counterclaim; the trial court ruled that it had no jurisdiction until the matter was restored to its docket. The defendant thereafter filed a motion to restore, claiming that the third special defense was more properly construed as a counterclaim. The court granted the defendant’s motion, and the plaintiff appealed.

Analysis on Appeal
In its review, the appellate court noted that a defendant with a pending, effective counterclaim should not need to move to restore a plaintiff’s withdrawn case to the docket. Such a determination in the subject case turned on whether the defendant’s third special defense, if it was to stand as a counterclaim, asserted an independent cause of action — with a special defense which does not seek affirmative relief being purely defensive, and not an effective counterclaim. In overturning the lower court’s ruling, the appellate court found there was a failure to make that determination.

Specifically, the trial court’s reliance on the special defense allegation arising from the same transaction as that described in the plaintiff’s complaint was misplaced, with the appellate court stating: “Evaluating the defendant’s answer against the correct standard, it is clear that the allegation in the defendant’s third special defense cannot properly be constructed as a counterclaim.” The third special defense allegations merely challenged the amount of the debt owed to the plaintiff, which may be raised by way of special defense or by objecting to the plaintiff’s attempted introduction of the affidavit of debt in court. Nothing in the defendant’s pleadings “can reasonably be interpreted as a claim of entitlement to affirmative relief.” On the other hand, the court noted that if the defendant had pleaded payments in excess of the debt, then she would be entitled to affirmative relief and, therefore, the special defense could be considered a counterclaim.

In closing, the appellate court cautioned that while construing pleadings “broadly and realistically,” a trial court should not read into them “factual allegations that simply are not there” or “substitute a cognizable legal theory that the facts, as pleaded, might conceivably support for the noncognizable theory that was actually pleaded.”

Editor’s Note: The author’s firm represented the appellant (plaintiff) in the case summarized in this article.

© Copyright 2018 USFN and McCalla Raymer Leibert Pierce, LLC. All rights reserved.
October e-Update

Note for consideration of the USFN Award of Excellence: This article is not a "Feature."


This post has not been tagged.

Share |
Permalink | Comments (0)
Membership Software Powered by YourMembership  ::  Legal