DocketNumber: No. CV 93 030 71 20S
Citation Numbers: 1994 Conn. Super. Ct. 5687
Judges: FULLER, JUDGE.
Filed Date: 5/11/1994
Status: Non-Precedential
Modified Date: 7/5/2016
A motion to strike can be filed to test the legal sufficiency of a special defense. Connecticut Practice Book § 152; Nowakv. Nowak,
The defendant concedes that the motion to strike can be granted as to the ninth special defense. A motion to strike admits all facts well pleaded but does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. Mingachos v. CBS, Inc., supra 108. If the facts provable under the allegations of the special defense support that defense, the motion to strike must fail. Id., 109. The fifth special defense states that recovery of damages by the plaintiff would violate public policy, since persons responsible for negligent and illegal acts should bear the consequences of their own actions and not shift that responsibility onto others. There is no factual basis for the defense. In addition the defendant has failed to identify any legal authority for this vaguely defined public policy defense. The eighth special defense relies upon that part of the Statute of Frauds, §
The second special defense asserts waiver and/or estoppel in that the plaintiffs voluntarily entered into the stipulated judgment and informed the defendants that they could afford the terms of that judgment. Neither side has located any Connecticut cases which hold whether or not an attorney can avoid a legal malpractice claim by a client on the grounds of waiver or estoppel where the negligence relates to a stipulated judgment entered into during litigation with a third party where the plaintiff was represented by the attorney in the negotiations resulting in the stipulated judgment. Both sides have identified numerous cases under varying fact patterns from other states which have either upheld or rejected the waiver or the estoppel defense. A cursory review of those cases indicates that their outcome turns, at least in part, upon the underlying factual situation confronting the trier. Stated another way, in some situations, depending upon the facts, a waiver or estoppel defense may be valid. If any facts provable under the allegations of the waiver or estoppel defense support a motion to strike the defense must be denied. Mingachos v. CBS, Inc., supra 109.
The motion to strike the second special defense is denied. The motion to strike the fifth, eighth and ninth special defenses is granted.
ROBERT A. FULLER, JUDGE