DocketNumber: No. X01-CV 98-0158478-S CT Page 5533
Citation Numbers: 2001 Conn. Super. Ct. 5532
Judges: HODGSON, BEVERLY JUDGE.
Filed Date: 4/5/2001
Status: Non-Precedential
Modified Date: 7/5/2016
In the first special defense challenged in the motion to strike, defendant Mark Durkin pleaded that "Plaintiffs Amended Reasons for Appeal fail to set forth claims upon which relief can be granted." The ground is thus the form of the pleading, not its legal merit. Failure to plead facts is a defect of form which should have been addressed by a request to revise. Practice Book §
In his second special defense, defendant Mark Durkin pleaded that paragraphs 2(c) and 2(d) of the plaintiffs amended reasons for appeal "fail to articulate a proper reason for appeal in that each relate (sic) to the alleged statutory rights of dissenting shareholders to enumerated actions of a corporation and/or its officers and directors." He further alleges that the instant action, a probate appeal, is not a proceeding in which such issues may be adjudicated.
The plaintiff is accurate in his position that defendant Mark Durkin has failed to recognize what content is properly pleaded as a special defense. Practice Book §
Accordingly, Mark Durkin could have asserted his position either in a motion to strike the portions of the complaint that he alleges are beyond the scope of a probate appeal or by advocating at the conclusion of the trial that the court reject such claims as non-justiciable in a probate appeal.
The plaintiff, however, seems to take the position that because defendant Mark Durkin has pleaded as special defenses legal theories that should not have been asserted in this way, rather than asserting them in a motion to strike the complaint, the merits of these legal issues should be resolved in the plaintiffs favor. The plaintiff cites no support for this unusual construction of the rules of civil pleading, and this court finds that it is not supportable.
Though the material set forth in the two challenged special defenses need not have been pleaded in this manner, the mispleading is harmless. Greater confusion would be caused by striking the defenses as to form, and, as has been stated above, the formal issue should instead have been raised by a request to revise that sought elimination of defenses that were not appropriately pleaded as special defenses pursuant to §
Conclusion
The motion to strike is denied. This denial does not, of course, establish the validity of the defenses, since the basis of the denial is that Mark Durkin's mispleading should have been challenged by a request to revise, not by a motion to strike.
___________________________ Beverly J. Hodgson Date Judge of the Superior Court