Sovereign Bank v. Harrison

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SOVEREIGN BANK v. ANGELA HARRISON
(AC 38937)
Alvord, Sheldon and Bear, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property of the
defendant, who filed an answer and three special defenses. Thereafter,
the plaintiff unilaterally withdrew its action and shortly thereafter com-
menced a foreclosure action against the defendant in federal court.
Subsequently, the trial court granted the defendant’s motion to restore
the case to the docket. In her motion to restore, the defendant claimed
that her third special defense, which alleged that the plaintiff did not
properly account for payments made by the defendant, was more prop-
erly construed as a counterclaim and therefore, survived the withdrawal
of the plaintiff’s action. On appeal, the plaintiff claimed that the trial
court erred in interpreting the defendant’s special defense as a counter-
claim and, therefore, lacked the authority to restore the case to the
docket. Held that the trial court lacked authority to restore the case to
the docket because there was no pending counterclaim as of the date
of the withdrawal: that court, in deciding whether the allegation in the
defendant’s third special defense constituted a counterclaim, incorrectly
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, and failed to determine whether the third defense asserted
an independent cause of action, and after the correct standard was
applied for determining whether the defendant pleaded a counterclaim
or a special defense, it was clear that the allegation in the defendant’s
third special defense could not properly be construed as a counterclaim,
as nothing in the defendant’s allegation could reasonably be interpreted
as a claim of entitlement to affirmative relief because she neither explic-
itly requested any judicial redress or relief nor alleged any facts from
which it could be inferred that she was entitled to such relief, and
although pleadings must be construed broadly and realistically, rather
than narrowly and technically, this court could not read into the defen-
dant’s answer a prayer for relief or factual allegations that simply were
not there; moreover, because the allegation that the plaintiff did not
properly account for the defendant’s payments challenged the amount
of the debt owed the plaintiff, which may be raised by way of special
defense, and in the absence of any suggestion that she made payments
in excess of the amount of the debt, the defendant would not be entitled
to any affirmative relief under that allegation, the defendant’s third
special defense could not reasonably be construed as stating an indepen-
dent cause of action, and, therefore, the trial court erred in construing
it as a counterclaim.
Argued May 23—officially released August 28, 2018
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk; thereafter, the plaintiff unilaterally
withdrew the action; subsequently, the trial court,
Mintz, J., granted the defendant’s motion to restore
the case to the docket, and the plaintiff appealed to
this court. Reversed; judgment directed.
Peter A. Ventre, with whom, on the brief, was Lindsey
A. Goergen, for the appellant (plaintiff).
Opinion
BEAR, J. In this foreclosure action, the plaintiff, Sov-
ereign Bank,1 appeals from the order of the trial court
granting the motion of the defendant, Angela Harrison,2
to restore her third special defense to the docket follow-
ing the plaintiff’s voluntary withdrawal of its action.3
The plaintiff’s principal claim on appeal is that the trial
court erred in interpreting the defendant’s special
defense as a counterclaim and, therefore, lacked the
authority to restore it to the docket.4 We agree and,
accordingly, reverse the order of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff commenced the present
action on September 9, 2010, seeking to foreclose a
mortgage on certain real property in Norwalk that the
defendant had executed in 2005 as security for a note
in the principal amount of $200,000. The plaintiff alleged
in its complaint that it was the holder of the note and
mortgage and that the defendant was in default under
the note and mortgage for failing to make payment
as agreed.
On June 24, 2011, the defendant filed an answer and
three special defenses. The defendant alleged in the first
two special defenses that the plaintiff’s predecessor in
interest had (1) misrepresented the terms and condi-
tions of the loan and (2) fraudulently entered false infor-
mation on the defendant’s loan application and sold the
defendant a loan that she could not possibly afford. As
to her third special defense—the only one at issue in
the present appeal—the defendant alleged that ‘‘[t]he
plaintiff did not properly account for payments made
by the defendant.’’ The plaintiff filed a reply denying
the defendant’s special defenses on December 2, 2014.
On November 23, 2015—prior to the scheduled trial
date—the plaintiff unilaterally withdrew its action pur-
suant to General Statutes § 52-80,5 and shortly thereafter
the plaintiff commenced a foreclosure action against
the same defendant in federal court.6 As of the date of
the withdrawal, the defendant had not effectively filed
a counterclaim.7 On November 30, 2015, the defendant
filed a request for leave to amend her answer to assert
a counterclaim, to which the plaintiff objected. At the
conclusion of the December 22, 2015 oral argument on
the objection, the court ruled from the bench that it
did not have jurisdiction to consider the defendant’s
request because no counterclaim had been pending
when the plaintiff withdrew its action. The court sug-
gested, however, that it might have the ability to con-
sider the request for leave to amend if the defendant
first filed a motion to restore the case to the docket.
Pursuant to the court’s suggestion, on January 28,
2016, the defendant filed a motion and an accompanying
memorandum of law to restore her special defenses
and counterclaim to the docket or, alternatively, to
restore the case to the docket (motion to restore).8 In
her memorandum of law, the defendant argued, inter
alia, that her third special defense9 was more properly
construed as a counterclaim and that, as such, it sur-
vived the withdrawal of the plaintiff’s action pursuant
to Practice Book § 10-55.10 After hearing oral argument
on the motion on February 8, 2016, the court issued an
oral decision granting the motion to restore.11
As set forth in its ruling and subsequent articulation,12
the court, relying on 225 Associates v. Connecticut
Housing Finance Authority, 65 Conn. App. 112, 121,
782 A.2d 189 (2001), determined that, because the defen-
dant’s third special defense arose out of the same trans-
action as that underlying the plaintiff’s action, it was
more properly construed as a counterclaim. Conse-
quently, the court concluded that the plaintiff’s with-
drawal of its action did not affect the pendency of such
counterclaim and that the defendant thus had a right to
have the counterclaim adjudicated. The court therefore
held that it ‘‘had jurisdiction to restore the case to the
docket, even though the plaintiff withdrew the case.’’
Accordingly, the court ordered that ‘‘the case [be]
restored to the docket for the sole purpose of the trial
on the counterclaim.’’ This appeal followed.
On appeal, the plaintiff claims that the trial court
acted in excess of its authority in restoring the defen-
dant’s third special defense to the docket. Specifically,
the plaintiff argues that the defendant’s special defense
could not properly be construed as a counterclaim
because it failed to allege any facts that would entitle the
defendant to seek judicial relief through an independent
cause of action against the plaintiff. The plaintiff further
contends that, because the special defense did not con-
stitute a counterclaim and thus did not survive the with-
drawal of the plaintiff’s action as provided in Practice
Book § 10-55, the court had no ‘‘continuing subject mat-
ter jurisdiction over the matter’’ after the plaintiff with-
drew its action. Therefore, the plaintiff claims that the
court ‘‘had no authority to restore [the] case for the
purpose of a counterclaim when, in fact, no counter-
claim existed’’ prior to the withdrawal of the action.
We first set forth our standard of review. ‘‘Any deter-
mination regarding the scope of a court’s subject matter
jurisdiction or its authority to act presents a question
of law over which our review is plenary.’’ Tarro v.
Mastriani Realty, LLC, 142 Conn. App. 419, 431, 69
A.3d 956, cert. denied, 309 Conn. 912, 69 A.3d 308, 309
(2013). To the extent that the plaintiff’s claim involves
a question as to the proper interpretation of pleadings,
our review likewise is plenary. See Chase Home
Finance, LLC v. Scroggin, 178 Conn. App. 727, 743,
176 A.3d 1210 (2017) (‘‘Construction of pleadings is a
question of law. Our review of a trial court’s interpreta-
tion of the pleadings therefore is plenary.’’ [Internal
quotation marks omitted.]). ‘‘[W]here the legal conclu-
sions of the court are challenged, we must determine
whether they are legally and logically correct and
whether they find support in the facts . . . .’’ (Internal
quotation marks omitted.) American First Federal, Inc.
v. Gordon, 173 Conn. App. 573, 583, 164 A.3d 776, cert.
denied, 327 Conn. 909, 170 A.3d 681 (2017).
By statute, a ‘‘plaintiff may withdraw any action . . .
before the commencement of a hearing on the merits
thereof.’’ General Statutes § 52-80. Although the plain-
tiff’s ‘‘right . . . to withdraw his action before a hear-
ing on the merits . . . is absolute and unconditional’’;
(emphasis added; internal quotation marks omitted)
Sicaras v. Hartford, 44 Conn. App. 771, 775–76, 692
A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340
(1997); such withdrawal in no way impairs the right of
the defendant to prosecute a previously filed counter-
claim. See Practice Book § 10-55; see also Boothe v.
Armstrong, 80 Conn. 218, 224, 67 A. 484 (1907) (where
case involves causes of action both in favor of plaintiff
and in favor of defendant, plaintiff ‘‘has the right to
withdraw from the cognizance of the court his own
cause of action as stated in the complaint, and this is
the only effect that can be given to his attempt to with-
draw the civil action’’ [emphasis added; internal quota-
tion marks omitted]).
Consequently, a defendant with a pending counter-
claim should not, in theory, need to move to have the
counterclaim restored to the docket following the with-
drawal of the plaintiff’s action because the counterclaim
survives the withdrawal as a matter of law. If, however,
the counterclaim is not identified as such in the defen-
dant’s answer, it may be erased from the docket along
with the plaintiff’s action. In such circumstances, the
court has the authority to grant a motion to restore the
case to the docket to permit the defendant to prosecute
the counterclaim because, where a defendant’s counter-
claim is wrongfully stricken from the docket following
the withdrawal of the plaintiff’s action, the defendant
‘‘is entitled to have [the case] restored for the purpose
[of pursuing the defendant’s counterclaim].’’ (Emphasis
added.) Boothe v. Armstrong, 76 Conn. 530, 533, 57 A.
173 (1904). The court’s authority, however, necessarily
depends on the existence of an effective counterclaim.
Indeed, it would be anomalous to conclude that the
court has the authority to restore a counterclaim to the
docket where the defendant had not effectively pleaded
a counterclaim. Consequently, whether the court in the
present case had the authority to restore the defendant’s
third special defense to the docket depends on whether
the special defense was, in effect, a counterclaim.
Although a counterclaim is similar to a special
defense in that both are employed by a defendant to
diminish or defeat a plaintiff’s claim, they nonetheless
are separate and distinct types of pleadings. See Chief
Information Officer v. Computers Plus Center, Inc.,
310 Conn. 60, 94, 74 A.3d 1242 (2013) (counterclaim is
pleaded, in part, ‘‘to diminish, defeat or otherwise affect
a plaintiff’s claim’’ [internal quotation marks omitted]);
Valentine v. LaBow, 95 Conn. App. 436, 447 n.10, 897
A.2d 624 (special defense ‘‘is an attempt 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]),
cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). The
heart of the distinction is that a counterclaim is an
independent cause of action, and a special defense is
not. See Historic District Commission v. Sciame, 152
Conn. App. 161, 176, 99 A.3d 207 (‘‘[a] counterclaim is
a cause of action . . . on which the defendant might
have secured affirmative relief had he sued the plaintiff
in a separate action’’ [internal quotation marks omit-
ted]), cert. denied, 314 Conn. 933, 102 A.3d 84 (2014);
Valentine v. LaBow, supra, 447 n.10 (‘‘a special defense
is not an independent action’’). Rather, a special defense
is a purely defensive pleading that does not seek any
affirmative relief. See Bank of America, N.A. v. Aubut,
167 Conn. App. 347, 374, 143 A.3d 638 (2016) (‘‘a special
defense operates as a shield, to defeat a cause of action,
and not as a sword, to seek a judicial remedy for a
wrong’’). Thus, in determining whether a defendant’s
answer asserts a counterclaim as opposed to a special
defense, the court must determine whether the defen-
dant could have maintained the claim as an independent
cause of action. Broadly defined, ‘‘[a] cause of action,
brought by means of a complaint or a counterclaim, is
a means of seeking redress for having suffered harm.
See, e.g., Black’s Law Dictionary (6th Ed. 1990) (defin-
ing ‘cause of action’ in part as ‘[t]he fact or facts which
give a person a right to judicial redress or relief against
another. . . . A situation or state of facts which would
entitle [a] party to sustain [an] action and give him
[the] right to seek a judicial remedy in his behalf.’).’’
(Emphasis added.) Bank of America, N.A. v. Aubut,
supra, 372. Consequently, this court has previously con-
sidered the existence of a prayer for relief in the defen-
dant’s answer to be ‘‘of critical importance in construing
[the] answer as a counterclaim . . . .’’ 98 Lords High-
way, LLC v. One Hundred Lords Highway, LLC, 138
Conn. App. 776, 802, 54 A.3d 232 (2012).
In the present case, the court, in deciding whether
the allegation in the defendant’s third special defense
constituted a counterclaim, made no determination as
to whether it asserted an independent cause of action.
Relying on 225 Associates v. Connecticut Housing
Finance Authority, supra, 65 Conn. App. 121, the court
instead focused its analysis on the question of whether
the defendant’s allegation arose out of the same transac-
tion as that described in the plaintiff’s complaint. In
that case, this court stated that ‘‘[i]f the [defendant’s]
claim arises out of the same transaction described in
the complaint, it is characterized as a counterclaim.’’
Id., 121. This statement, however, was made in the con-
text of explaining the distinction between a counter-
claim and a setoff. Id. A claim of setoff is similar to a
counterclaim in that it ‘‘involve[s] the existence, in favor
of the defendant, of an independent cause of action
which he might pursue in a separate action.’’13 (Empha-
sis added.) Boothe v. Armstrong, supra, 76 Conn. 531–
32. The two types of claims differ only in that ‘‘[a]
counterclaim arises out of the same transaction
described in the complaint’’; Savings Bank of New Lon-
don v. Santaniello, 130 Conn. 206, 210, 33 A.2d 126
(1943); whereas ‘‘[a] set-off is independent thereof.’’
Id. Thus, this court observed in 225 Associates that,
‘‘[t]raditionally, the distinction between a setoff and a
counterclaim centers around whether the claim arises
from the same transaction described in the complaint.’’
(Internal quotation marks omitted.) 225 Associates v.
Connecticut Housing Finance Authority, supra, 221.
In contrast, the issue in the present case requires us
to distinguish between a counterclaim and a special
defense. Consequently, the court’s reliance on the stan-
dard enunciated in 225 Associates was misplaced. Eval-
uating the defendant’s answer against the correct
standard, it is clear that the allegation in the defendant’s
third special defense cannot properly be construed as
a counterclaim.
The defendant’s third special defense consisted of a
single allegation: ‘‘The plaintiff did not properly account
for payments made by the defendant.’’ Nothing in this
allegation can reasonably be interpreted as a claim of
entitlement to affirmative relief. She neither explicitly
requested any judicial redress or relief nor alleged any
facts from which it could be inferred that she was enti-
tled to such relief. Although pleadings must be con-
strued ‘‘broadly and realistically, rather than narrowly
and technically’’; (internal quotation marks omitted)
Grenier v. Commissioner of Transportation, 306 Conn.
523, 536, 51 A.3d 367 (2012); this does not mean that
we may read into the defendant’s answer a prayer for
relief or factual allegations that simply are not there.
See Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684
(2004) (rule that courts should read pleadings broadly
and realistically ‘‘does not mean . . . that the trial
court is obligated to read into pleadings factual allega-
tions that simply are not there or to substitute a cogniza-
ble legal theory that the facts, as pleaded, might
conceivably support for the noncognizable theory that
was actually pleaded’’); see also Grenier v. Commis-
sioner of Transportation, supra, 536 (‘‘[o]ur reading of
pleadings in a manner that advances substantial justice
means that a pleading must be construed reasonably,
to contain all that it fairly means, but carries with it
the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension’’ [internal quotation marks omitted]).
Reading it broadly and realistically, the allegation that
the plaintiff did not properly account for the defendant’s
payments merely challenges 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.
Bank of America, N.A. v. Chainani, 174 Conn. App.
476, 486, 166 A.3d 670 (2017). In the absence of any
suggestion that she made payments in excess of the
amount of the debt, the defendant would not be entitled
to any affirmative relief under this allegation. Conse-
quently, the defendant’s third special defense cannot
reasonably be construed as stating an independent
cause of action, and, therefore, the trial court erred in
construing it as a counterclaim. Because there was no
pending counterclaim as of the date of the withdrawal,
the court lacked the authority to restore the case to
the docket.
The judgment is reversed and the case is remanded
with direction to deny the motion to restore.
In this opinion the other judges concurred.
1
On October 17, 2013, subsequent to the commencement of the present
action, the plaintiff changed its name to Santander Bank. Although the
plaintiff’s filings subsequent to that date reflected that it now was known
as Santander Bank, it did not file a motion to substitute Santander Bank as
plaintiff, and, thus, the trial court file continues to identify the plaintiff as
Sovereign Bank. Therefore, we likewise identify the plaintiff as Sovereign
Bank.
2
The defendant did not file a brief in this appeal. Accordingly, on January
18, 2018, this court issued an order indicating that the appeal would be
considered solely on the basis of the plaintiff’s brief and the record as
defined by Practice Book § 60-4.
3
‘‘[F]or final judgment purposes, an order restoring a withdrawn case to
the docket is identical in all material respects to an order opening a final
judgment . . . .’’ Rosado v. Bridgeport Roman Catholic Diocesan Corp.,
276 Conn. 168, 195, 884 A.2d 981 (2005). ‘‘Ordinarily, the granting of a
motion to open a prior judgment is not a final judgment, and, therefore, not
immediately appealable. . . . Our Supreme Court, however, has carved out
an exception to that rule where a colorable claim is made that the trial
court lacked the power to open a judgment.’’ (Internal quotation marks
omitted.) Simmons v. Weiss, 176 Conn. App. 94, 98, 168 A.3d 617 (2017).
Thus, ‘‘an order restoring a case to the docket . . . [is likewise] immediately
appealable when that order is challenged on the basis of the court’s authority
to restore the case to the docket . . . .’’ (Emphasis omitted.) Rosado v.
Bridgeport Roman Catholic Diocesan Corp., supra, 197. In the present case,
the plaintiff’s principal claim, which is dispositive of its appeal, concerns
the authority of the trial court to restore the defendant’s special defense to
the docket. Accordingly, this court has subject matter jurisdiction to decide
the plaintiff’s appeal. See General Statutes § 52-263.
4
The plaintiff also claims on appeal that: (1) the trial court erred in
determining that the defendant had a vested right that was prejudiced by
the withdrawal of the plaintiff’s action and, therefore, abused its discretion
in restoring the case to the docket; and (2) no practical relief can be afforded
to the defendant by upholding the trial court’s decision to restore the case
for adjudication of her special defense because the defendant waived her
right to assert it by failing to do so in the federal foreclosure action subse-
quently brought by the plaintiff. Because the issue of the court’s authority
to restore the defendant’s special defense to the docket is dispositive, we
do not address the plaintiff’s other claims.
5
General Statutes § 52-80 provides in relevant part: ‘‘The plaintiff may
withdraw any action . . . returned to and entered in the docket of any
court, before the commencement of a hearing on the merits thereof. After
the commencement of a hearing on an issue of fact in any such action, the
plaintiff may withdraw such action, or any other party thereto may withdraw
any cross complaint or counterclaim filed therein by him, only by leave of
court for cause shown.’’
6
On September 26, 2016, the plaintiff filed a motion requesting that this
court take judicial notice and supplement the record. On December 6, 2017,
we granted the motion for the purpose of taking judicial notice of the file
and decisions rendered in the plaintiff’s federal foreclosure action against
the defendant in Santander Bank, N.A. v. Harrison, United States District
Court, Docket No. 3:15CV01730 (AVC) (D. Conn.).
7
Although the defendant had filed a four count counterclaim prior to the
withdrawal of the plaintiff’s action, the trial court ruled during an October
21, 2015 trial management conference that the counterclaim was ineffective
and ‘‘not part of this case’’ because the defendant had not filed it in conjunc-
tion with a request for leave to amend her answer. The defendant failed to
file such a request in the intervening month before the plaintiff withdrew
its action.
8
Because the defendant previously had filed a motion to restore on Janu-
ary 14, 2016, she titled her January 28, 2016 filing as a ‘‘revised’’ motion to
restore. Because only the revised motion is relevant to this appeal, for the
sake of simplicity, we refer to it as the defendant’s motion to restore.
9
Although the defendant suggested that the trial court could construe all
of her special defenses as counterclaims, her specific argument focused
solely on the third special defense.
10
Practice Book § 10-55 provides: ‘‘The withdrawal of an action after a
counterclaim, whether for legal or equitable relief, has been filed therein
shall not impair the right of the defendant to prosecute such counterclaim
as fully as if said action had not been withdrawn, provided that the defendant
shall, if required by the judicial authority, give bond to pay costs as in
civil actions.’’
11
In accordance with Practice Book § 64-1 (a), the trial court created a
memorandum of decision for use in this appeal by signing a transcript of
the portion of the proceedings in which it stated its oral decision and filing
it with the clerk of the trial court.
12
After 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.’’
13
More specifically, ‘‘[a] set-off is made where the defendant has a debt
against the plaintiff . . . and desires to avail himself of that debt, in the
existing suit, either to reduce the plaintiff’s recovery, or to defeat it alto-
gether, and, as the case may be, to recover a judgment in his own favor for
a balance.’’ (Internal quotation marks omitted.) Mariculture Products Ltd.
v. Certain Underwriters at Lloyd’s of London, 84 Conn. App. 688, 703, 854
A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004).