Kaye v. Housman , 184 Conn. App. 808 ( 2018 )

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RICHELLE KAYE v. DOUGLAS HOUSMAN
(AC 40187)
Lavine, Keller and Bishop, Js.
Syllabus
The plaintiff landlord sought to recover damages from the defendant tenant
for, inter alia, breach of contract in connection with the defendant’s
failure to pay rent. Thereafter, the defendant filed an answer, twelve
special defenses and right of recoupment, and the plaintiff filed a request
to revise eight of the defendant’s special defenses and right of recoup-
ment. Subsequently, the plaintiff filed a motion for default for failure
to plead, claiming that thirty days had passed since she filed the request
to revise and that the defendant had not responded. The trial court
granted the plaintiff’s motion for default and the plaintiff filed a certifi-
cate of closed pleadings and claimed the matter for a hearing in damages.
Thereafter, the defendant filed a motion to strike the matter from the
hearing in damages that was denied by the court, which held a hearing
in damages and rendered judgment for the plaintiff. On appeal to this
court, the defendant claimed that the trial court improperly denied his
motion to strike the case from the hearing in damages because he timely
filed an answer and four special defenses. Specifically, he claimed that
the trial court, by denying his motion to strike, deprived him of the
opportunity to contest liability that timely was put in issue by virtue of
his answer and special defenses, which thereby denied him the right to
due process. Held that the trial court was without authority to grant
the motion for default against the defendant and, thus, should have
granted his motion to strike the matter from the hearing in damages
list: the defendant filed an answer and four special defenses, which the
plaintiff did not ask him to revise, before the court granted the plaintiff’s
motion for default, and the plaintiff’s claim that, under the applicable
rule of practice (§ 10-6 [5]), the special defenses were part of the answer
and, therefore, that the defendant was in default on the entire complaint
for failing to revise eight of his special defenses and recoupment was
unavailing, as § 10-6 (5) does not define a special defense as part of
an answer and merely provides that when a defendant responds to a
complaint, the answer and special defenses are to be filed at the same
time in the order of pleadings, other rules of practice make clear that
an answer and a special defense have legally distinct functions, and, in
the order of pleadings, a plaintiff is required to file a reply to any special
defense and no rule of practice requires a plaintiff to file any response
to a defendant’s answer; moreover, pursuant to the relevant statute
(§ 52-119) and rule of practice (§ 10-18), which govern the penalty for
failing to plead, a party failing to plead according to the rules may be
nonsuited or defaulted, there is support for the proposition that a trial
court commits plain error if, prior to rendering a judgment upon default,
the court fails to accept for filing a defaulted party’s pleading solely on
the ground that the pleading was untimely, and our Supreme Court has
expressed a policy to bring about a trial on the merits of a dispute
whenever possible to secure a litigant’s day in court.
Argued April 16—officially released September 18, 2018
Procedural History
Action to recover unpaid rent, and for other relief,
brought to the Superior Court in the judicial district
of Fairfield, where the matter was transferred to the
Housing Session at Bridgeport; thereafter, the defen-
dant was defaulted for failure to plead; subsequently,
the trial court, Rodriguez, J., denied the defendant’s
motion to strike the matter from the hearing in damages
list; thereafter, the court, after a hearing in damages,
rendered judgment in favor of the plaintiff, from which
the defendant appealed to this court. Reversed; fur-
ther proceedings.
Sabato P. Fiano, with whom, on the brief, was Car-
olyn A. Trotta, for the appellant (defendant).
Anthony Musto, for the appellee (plaintiff).
Opinion
LAVINE, J. In this housing court matter, the defen-
dant, Douglas Housman, appeals from the judgment of
the trial court rendered in favor of the plaintiff, Richelle
Kaye, following a hearing in damages. On appeal, the
defendant claims that the trial court (1) improperly held
a hearing in damages in view of his operative answer
and four special defenses and (2) denied him the right
to due process because the court did not adjudicate
fully his timely filed answer and four special defenses.1
We reverse the judgment of the trial court.
The record reveals the following procedural history.
In April, 2016, the plaintiff served the defendant with
a four count complaint alleging breach of contract,
anticipatory breach of contract, quantum meruit, and
unjust enrichment. The plaintiff alleged in part that she
is the owner of property at 100 Stone Ridge Way in
Fairfield and that she had leased the premises to the
defendant pursuant to a written agreement from August
1, 2012 through July 31, 2016. She also alleged that the
defendant was to pay her rent of $3400 per month, but
he failed to pay rent for the months of August, 2015
through April, 2016. The plaintiff evicted the defendant
from the premises. The plaintiff further alleged that
she incurred expenses related to the eviction and will
continue to incur expenses as a result of the defen-
dant’s default.
The complaint was returnable to court on May 24,
2016. Counsel for the defendant filed an appearance on
the return day. On June 24, 2016, the plaintiff filed a
motion for default for failure to plead. On July 5, 2016,
the court, Bellis, J., transferred the case from the Fair-
field civil docket to the Bridgeport housing docket. On
July 22, 2015, the plaintiff filed a second motion for
default for failure to plead claiming that more than
thirty days had passed since the complaint was filed
and the defendant had not filed a responsive pleading.
On August 18, 2016, the defendant filed an answer,
twelve special defenses and right of recoupment. On
August 22, 2016, the plaintiff filed a request to revise
asking the defendant to revise eight of his special
defenses and right of recoupment. On September 22,
2016, the plaintiff filed a motion for default claiming
that thirty days had passed since she filed a request to
revise and that the defendant had not responded.2 On
October 3, 2014, the court, Rodriguez, J., granted the
motion for default for failure to plead. On October 25,
2016, the plaintiff filed a certificate of closed pleadings
and claimed the matter for a hearing in damages.
On November 17, 2016, the defendant filed a motion
to set aside the default.3 On that same day, the defendant
also filed a request to amend his special defenses, and
revised and amended special defenses and recoupment.
On November 23, 2016, the plaintiff filed objections to
the defendant’s request to amend and his motion to
open the default. She also filed a motion for a continu-
ance to enable the court to rule on the defendant’s
pending motion to open the default. Judge Rodriguez
granted the plaintiff’s request for a continuance on
November 28, 2016. On December 29, 2016, the court
denied the defendant’s motion to open the default and
sustained the plaintiff’s objection.
On January 4, 2017, the plaintiff filed a motion for
continuance because her counsel was unavailable until
February 10, 2017. The court granted the motion for
continuance. On January 31, 2017, the defendant filed
a motion to strike the matter from the hearing in dam-
ages list. In the motion to strike, the defendant repre-
sented that he had filed an answer, twelve special
defenses, and right of recoupment on August 18, 2016,
and that the plaintiff had filed requests to revise eight
of his special defenses and right of recoupment. The
defendant specifically pointed out that the plaintiff had
not filed a request to revise the answer or his first,
second, tenth or twelfth special defenses. He argued
that the default affected only the eight special defenses
and right of recoupment which he did not revise. In
support of his motion to strike, the defendant cited
Connecticut Light & Power Co. v. St. John, 80 Conn.
App. 767, 837 A.2d 841 (2004), noting that the entry of
a default was improper with respect to the complaint
because ‘‘[t]he court had no authority to default the
defendants for failure to plead on a complaint that they
had properly answered.’’ (Emphasis added.) Id., 775.
The plaintiff filed an objection to the motion to strike
on February 2, 2017, and attempted to distinguish Con-
necticut Light & Power Co. procedurally because the
request to revise in that case was directed to a counter-
claim, not special defenses, which are part of an answer.
The plaintiff, however, stated that if the court agreed
with the defendant’s argument pursuant to Connecticut
Light & Power Co., it should nonetheless find the defen-
dant in default on those portions of his answer that he
did not revise.
The parties appeared in court on February 15, 2017.
The court heard argument on the defendant’s motion
to strike the case from the hearing in damages list. The
court denied the motion to strike, held a hearing in
damages, and rendered judgment in favor of the plaintiff
in the amount of $43,696.30.
The defendant appealed and filed a motion for articu-
lation. See Practice Book § 66-5. The defendant asked
the court to articulate the reason it denied his motion
to strike the case from the hearing in damages list. The
trial court denied the motion for articulation, and the
defendant filed a motion for review in this court. See
Practice Book § 66-7. This court granted the motion for
review, but denied the relief requested.
On appeal, the defendant claims that the court
improperly denied his motion to strike the case from
the hearing in damages list because he timely filed an
answer and his first, second, tenth, and twelfth special
defenses.4 The defendant claims that the court, by deny-
ing his motion to strike, deprived him of the opportunity
to contest liability that timely was put in issue by virtue
of his answer and special defenses. The defendant also
argues that Practice Book § 10-37 (a) contains no provi-
sion for granting a default or nonsuit for failure to
comply with a request to revise.5
The plaintiff counters the defendant’s claim on the
basis of Practice Book § 10-6 (5), arguing that special
defenses are part of an answer and therefore the defen-
dant was in default on the entire complaint for failing
to revise eight of his special defenses and recoupment.
She also argues that the defendant’s motion to strike
merely was a second bite at the apple after the court
denied the defendant’s motion to set aside the default.
In his reply brief, the defendant disagrees that he was
seeking a second bite at the apple. He states that the
relief he was seeking from his motion to set aside the
default was resurrection of eight of his special defenses.
The relief he sought in his motion to strike the case
from the hearing in damages list was a trial on the
merits of the case in view of his answer and four special
defenses that the plaintiff did not request that he revise.
Our statutes and rules of practice provide penalties
for failing to comply with the timely pleading require-
ments of Practice Book § 10-8. ‘‘General Statutes § 52-
119 provides that [p]arties failing to plead according to
the rules and orders of the court may be . . . defaulted
. . . . Section 10-18 of our rules of practice essentially
mirrors that language. We read the plain and unambigu-
ous language of both § 52-119 and Practice Book § 10-
18 as empowering the court with the discretionary
authority to impose a default as a penalty whenever a
defendant has failed to comply with our rules regarding
pleadings, including the timely advancement of such
pleadings. Such authority is in accord with the court’s
broad, general authority to act to maintain the orderly
procedure of the court docket, and to prevent any inter-
ference with the fair administration of justice.’’ (Empha-
sis added; internal quotation marks omitted.) People’s
United Bank v. Bok, 143 Conn. App. 263, 268, 70 A.3d
1074 (2013).
‘‘A default is an interlocutory ruling that establishes
that a plaintiff is entitled to judgment, but requires fur-
ther proceedings to determine the amount of money
due to the plaintiff if the action is one for monetary
damages.’’ CAS Construction Co. v. Dainty Rubbish
Service, Inc., 60 Conn. App. 294, 299, 759 A.2d 555
(2000), cert. denied, 255 Conn. 928, 767 A.2d 101 (2001).
‘‘[A] default admits the material facts that constitute
a cause of action . . . and entry of a default, when
appropriately made, conclusively determines the liabil-
ity of a defendant.’’ (Emphasis in original; internal quo-
tation marks omitted.) Connecticut Light & Power Co.
v. St. John, supra, 80 Conn. App. 775.
The parties’ positions with respect to what consti-
tutes an answer require us to construe the relevant
rules of practice. ‘‘We interpret provisions of the Prac-
tice Book according to the same well settled principles
of construction that we apply to the General Statutes.
. . . In determining the meaning of a statute, [it] must
be considered as a whole, with a view toward reconcil-
ing its separate parts in order to render a reasonable
overall interpretation.’’ (Citations omitted; internal quo-
tation marks omitted.) Wilson v. Troxler, 91 Conn. App.
864, 871, 883 A.2d 18, cert. denied, 276 Conn. 928, 929,
889 A.2d 819, 820 (2005). ‘‘Statutory construction . . .
presents a question of law over which our review is
plenary.’’ (Internal quotation marks omitted.) Byars v.
FedEx Ground Package System, Inc., 101 Conn. App.
44, 48, 920 A.2d 352 (2007).
The rules of practice regarding pleading are found
in Chapter 10 of the Practice Book. Practice Book § 10-
8, titled ‘‘Time to Plead,’’ provides in relevant part:
‘‘Commencing on the return day of the writ, summons
and complaint in civil actions, pleadings . . . shall
advance within thirty days from the return day, and any
subsequent pleadings . . . shall advance at least one
step within each successive period of thirty days from
the preceding pleading . . . .’’ The steps referred to
in § 10-8 are set forth in Practice Book § 10-6, titled
‘‘Pleadings Allowed and Their Order,’’ which provides in
relevant part: ‘‘The order of pleading shall be as follows:
‘‘(1) The plaintiff’s complaint.
‘‘(2) The defendant’s motion to dismiss the complaint.
‘‘(3) The defendant’s request to revise the complaint.
‘‘(4) The defendant’s motion to strike the complaint.
‘‘(5) The defendant’s answer (including any special
defenses) to the complaint.
‘‘(6) The plaintiff’s request to revise the defen-
dant’s answer.
‘‘(7) The plaintiff’s motion to strike the defendant’s
answer.
‘‘(8) The plaintiff’s reply to any special defenses.’’
The plaintiff relies on the language of Practice Book
§ 10-6 (5) to support her contention that special
defenses are defined as part of an answer. We do not
construe § 10-6 (5) as defining a special defense as part
of an answer. Section 10-6 (5) does no more than state
that when a defendant responds to a complaint, the
answer and special defenses are to be filed at the same
time in the order of pleadings.6 An answer and a special
defense have legally distinct functions as other rules
of practice make clear.
Practice Book § 10-46 titled ‘‘The Answer; General
and Special Denial,’’ prescribes the manner in which a
defendant shall answer the allegations of a complaint
and provides in relevant part: ‘‘The defendant in an
answer shall specially deny such allegations of the com-
plaint as the defendant intends to controvert, admitting
the truth of the other allegations . . . .’’
Practice Book § 10-50 defines the purpose of a special
defense. That section, titled, ‘‘Denials; Special
Defenses,’’ provides in relevant part: ‘‘No facts may be
proved under either a general or special denial except
such as show that the plaintiff’s statement of facts are
untrue. Facts which are consistent with such state-
ments but show, notwithstanding, that the plaintiff has
no cause of action, must be specially alleged.’’ Practice
Book § 10-50. ‘‘Where several matters of defense are
pleaded, each must refer to the cause of action which
it is intended to answer, and be separately stated and
designated as a separate defense . . . . Where the
complaint or counterclaim is for more than one cause
of action, set forth in several counts, each separate
matter of defense should be preceded by a designation
of the cause of action which it is designed to meet
. . . .’’ Practice Book § 10-51. Section 10-50 highlights
the interrelationship between a cause of action and a
special defense. In that regard, it is important to point
out that a plaintiff bears the burden of proof on his or
her complaint; see Rivera v. Meriden, 72 Conn. App.
766, 772, 806 A.2d 585 (2002); and the defendant bears
the burden of proof on his or her special defense(s).
See Lumbermens Mutual Casualty Co. v. Scully, 3
Conn. App. 240, 245 n.5, 486 A.2d 1141 (1985).
The final step in the order of pleadings requires a
plaintiff to file a reply to any special defense. See Prac-
tice Book § 10-6 (8). No rule of practice requires the
plaintiff to file any response to the defendant’s answer.
Our courts repeatedly have pointed out the purpose
of a special defense. ‘‘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.’’ (Internal quotation
marks omitted.) U.S. Bank National Assn. v. Blowers,
177 Conn. App. 622, 631, 172 A.3d 837 (2017), cert.
granted on other grounds, 328 Conn. 904, 177 A.3d 1160
(2018); accord Danbury v. Dana Investment Corp., 249
Conn. 1, 17, 730 A.2d 1128 (1999) (purpose of special
defense); Grant v. Bassman, 221 Conn. 465, 472–73,
604 A.2d 814 (1992) (same); see also Coughlin v. Ander-
son, 270 Conn. 487, 501, 853 A.2d 460 (2004); Moran v.
Morneau, 100 Conn. App. 169, 173, 917 A.2d 1003 (2007),
cert. denied, 289 Conn. 953, 961 A.2d 420 (2008).
In the present case, the defendant claims that he
timely filed an answer and four special defenses, which
the plaintiff did not ask him to revise, and, therefore,
the default entered by the court on the plaintiff’s com-
plaint was improper. In support of his claim, the defen-
dant relies on Connecticut Light & Power Co. v. St.
John, supra, 80 Conn. App. 767. In Connecticut Light &
Power Co., ‘‘this court concluded that a trial court was
required to set aside a default judgment as a matter of
law when the default had been rendered improperly.’’
People’s United Bank v. Bok, supra, 143 Conn. App.
269–70.
In Connecticut Light & Power Co., after the defen-
dants had filed answers and counterclaims in response
to the plaintiff’s complaint, the plaintiff filed a request
to revise the defendants’ counterclaim. Connecticut
Light & Power Co. v. St. John, supra, 80 Conn. App.
769–70. Thereafter the plaintiff filed a motion for default
for failure to plead when the defendants did not respond
to its request to revise the counterclaim. Id., 770. The
clerk of the court granted the motion, defaulting the
defendants on both the complaint and their counter-
claim. Id., 770, 773. The defendants filed a motion to
open the default, but the trial court denied it. Id., 770.
When this court reversed the trial court’s denial of the
defendant’s motion to open the default judgment on
the plaintiff’s complaint, it concluded that the entry of
default by the clerk was improper with respect to the
plaintiff’s complaint because ‘‘[t]he court had no author-
ity to default the defendants for failure to plead on a
complaint that they had properly answered.’’ Id., 775.
The plaintiff rejects the teaching of Connecticut
Light & Power Co. and contends that Connecticut
National Bank v. Marland, 45 Conn. App. 354, 696 A.2d
374, cert. denied, 243 Conn. 907, 701 A.2d 328 (1997),
is squarely on point with the procedural posture of the
present case. We do not agree. Although this court
agreed that the trial court in Connecticut National Bank
properly nonsuited the defendant on his special
defenses and counterclaim, it did not conclude that
the defendant was in in default on his answer. The
defendant in Connecticut National Bank filed a motion
to strike the case from the trial list, which the trial
court denied and this court affirmed. The important
distinction between Connecticut National Bank and
the present case is that in Connecticut National Bank
the defendant had filed a timely answer, but was non-
suited for failure to revise his special defenses and
counterclaim. Id., 354. Because the defendant was not
defaulted, the case was claimed to the trial list, not
the hearing in damages list. In the present case, the
defendant, despite having filed a timely answer and four
special defenses, was defaulted and his liability was
conclusively determined. See Connecticut Light &
Power Co. v. St. John, supra, 80 Conn. App. 775. The
case was placed on the hearing in damages list where
only the amount of money the defendant allegedly owed
the plaintiff was to be decided. In fact, a close reading
of Connecticut National Bank demonstrates support
for the defendant’s position that the court improperly
denied his motion to strike the case from the hearing
in damages list and thus denied him the opportunity to
contest liability.
Regardless of whether special defenses are an intri-
cate part of an answer, this case turns not on the techni-
cal definitions of an answer but on what the sound
principles of procedure require. At various times in the
trial court and on appeal, each of the parties suggested
an alternative to the defendant’s default, i.e., that the
defendant should not be permitted to rely on the special
defenses that he did not revise, but that the case proceed
to trial on his answer and four remaining special
defenses. There is legal precedent for such a solution.
See McCarthy v. Thames Dyeing & Bleaching Co., 130
Conn. 652, 36 A.2d 739 (1944). In McCarthy, the plaintiff
was nonsuited on ‘‘the ground that [he] had failed to
comply in certain respects with an order for a more
specific statement.’’ Id., 653. In his complaint, the plain-
tiff alleged, among other things, that he had lent the
plaintiff, his employer, many thousands of dollars for
materials, wages, and other things in order to continue
operations. Id. ‘‘The defendant made a motion for a
more particular statement as to the items [the plaintiff
had paid for], which was granted in part.’’ Id. The plain-
tiff filed ‘‘a bill of particulars’’; id.; that complied in part
with the court’s order. Because the plaintiff failed to
file a specific statement as to certain items as required
by the court, he was nonsuited. Id.
Our Supreme Court stated that ‘‘[o]n the face of the
record, the situation is that, because the plaintiff has
failed to file a specific statement as to certain general
claims in his complaint, and has not fully complied with
the order for the more specific statement as to another
general claim, his action is thrown out of court, although
he as well pleaded claimed items of indebtedness by
the defendant amounting to almost $7000. The mere
statement of this proposition is enough to suggest that
the action of the trial court was wrong. It is axiomatic
in modern pleading that, because a plaintiff cannot sub-
stantiate a separable part of the claim in his complaint,
he is not to be barred of recovery as regards that portion
of it he can establish. Where the failure to file a bill of
particulars as ordered goes to the entire cause of action,
a judgment of nonsuit may be proper. . . . Even when
the failure to file the bill goes only to a part of the cause
of action, it may be that the circumstances would justify
such an order. . . . In the situation before us, the
proper remedy of the defendant was not a motion for
a nonsuit but one to expunge from the complaint the
general allegations as to which specific statements as
ordered by the court were not filed, or objection at
the trial to any evidence offered in support of those
allegations.’’ (Citations omitted.) Id., 653–54.
Our Supreme Court noted that the General Statutes
and rules of practice ‘‘provide only that, where a party
fails to comply with a rule or order of the court as to
pleadings, the court ‘may’ grant a nonsuit; they do not
require that one be granted where to do so would run
counter to sound principles of procedure.’’ Id., 654.
Although McCarthy was decided approximately sev-
enty years ago, the present day statute and rule govern-
ing the penalty for failing to plead state that a party
failing to plead according to the rules ‘‘may be non-
suited or defaulted, as the case may be.’’ (Emphasis
added.) General Statutes § 52-119; Practice Book
§ 10-18.
In the present case, the defendant filed an answer
and four special defenses, which the plaintiff did not
ask him to revise, before the court granted the plaintiff’s
motion for default. ‘‘[T]here is . . . support for the
proposition that a court commits plain error if, prior
to rendering a judgment upon default, the court fails
to accept for filing a defaulted party’s pleading solely
on the ground that the pleading is untimely. . . . Gen-
eral Statutes § 52-121 (a) provides in relevant part: Any
pleading in any civil action may be filed after the expira-
tion of the time fixed by statute or by any rule of the
court until the court has heard any motion for judgment
by default . . . for failure to plead which has been filed
in writing with the court in which the action is pending.’’
(Internal quotation marks omitted.) People’s United
Bank v. Bok, supra, 143 Conn. App. 268. ‘‘Moreover,
‘[o]ur Supreme Court has expressed a policy to bring
about a trial on the merits of a dispute whenever possi-
ble to secure for the litigant his day in court.’ ’’ Id.,
quoting Connecticut Light & Power Co. v. St. John,
supra, 80 Conn. App. 775. The court, therefore, was
without authority to grant the motion for default against
the defendant and, thus, should have granted his motion
to strike the matter from the hearing in damages list.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
Because we conclude that it was improper for the trial court to deny
the defendant’s motion to strike the case from the hearing in damages list,
we do not reach his due process claim.
2
The defendant did not object to the plaintiff’s requests to revise or
otherwise timely respond to the plaintiff’s request to revise.
3
In the motion to set aside the default, counsel for the defendant repre-
sented that he had made diligent efforts to communicate with the defendant
in order to obtain information needed to respond to the plaintiff’s request
to revise. He argued that the case was in its ‘‘infancy,’’ discovery had not
yet been conducted, and that the plaintiff would not be prejudiced by setting
aside the default.
4
The defendant’s relevant special defenses alleged:
‘‘First special defense: plaintiff’s action is barred, in whole or in part, in
that the plaintiff, as landlord, failed to deliver to the defendant tenant a
habitable and safe premises in accordance with the lease and Connecti-
cut law;
‘‘Second special defense: plaintiff’s action is barred, in whole or in part,
in that the plaintiff unlawfully interfered with the defendant’s tenancy by
unlawfully entering the premises without permission or notice in violation
of [General Statutes §§] 47a-16 and 47a-18a. . . .
‘‘Tenth special defense: The plaintiff’s action is barred, in whole or in
part, by virtue of payment. . . .
‘‘Twelfth special defense: plaintiff[’s] action is barred, in whole or in part,
by virtue of plaintiff[’s] failure to mitigate [her] damages.’’
5
Practice Book § 10-37 (a) provides in relevant part: ‘‘Any such request
. . . shall be filed with the clerk of the court . . . and such request shall
be deemed to have been automatically granted by the judicial authority on
the date of filing . . . unless within thirty days of such filing the party to
whom it is directed shall file objection thereto.’’
6
A defendant, however, may file a request to amend and add special
defenses pursuant Practice Book § 10-60.