DocketNumber: No. 28 87 68
Citation Numbers: 1991 Conn. Super. Ct. 5546
Judges: MIHALAKOS, J.
Filed Date: 6/7/1991
Status: Non-Precedential
Modified Date: 7/5/2016
In a previous memorandum of decision, the court, Flanagan, J. presiding, the first, second, third and sixth special defenses and the fourth and fifth counts of defendants' counterclaim were struck.
This Court now addresses the remaining special defenses and counterclaim counts.
The first count alleges violation of the Connecticut Unfair Trade Practices Act (CUTPA), Connecticut General Statutes Section
A party is entitled to summary judgment if he would be entitled to a directed verdict on the same facts. United Oil Co. v. Urban Redevelopment Commission,
Summary Judgment on Special Defenses CT Page 5547
Summary judgment is available on complaints, counterclaims and cross-complaints. Connecticut Practice Book Section 379 (rev'd to 1978, as updated to October 1, 1990). See also Esposito v. Wethered,
Since there is no provision for the granting of summary judgment as to special defenses, the motion as it pertains to the fourth and fifth special defenses is hereby denied.
Defendant, in its memorandum, refers to four new acts of bad faith by plaintiff. These new acts, however, were never alleged in its counterclaim. Since these are new matters never before referred to in the counterclaim, the Court will not now consider them.
"(T)he right of a (party) to recover is limited to the allegations of his complaint." Lamb v. Burns,
As to plaintiff's complaint, the allegations are that the defendants each guaranteed in writing the prompt payment of the indebtedness for the primary obligor. This is admitted by defendants in their pleadings. "The admission of the truth of an allegation in a pleading is a judicial admission on the pleader." Rodearmel v. Rodearmel,
In its complaint, the plaintiff alleges that the original obligor is in default. The defendants admit this in their answer and have failed to file with this Court any documents which would dispute this allegation. The Court finds that although the complaint on its face, and the lack of any evidence presented by defendant, appears to prove liability, nonetheless the Court must consider the fourth and fifth special defenses which allege bad faith. This raises a question of fact in the Court's mind. Accordingly, the motion for summary judgment as to liability of defendant on the complaint is hereby denied.
The Court now addresses the question of summary CT Page 5548 judgment as to defendants' counterclaim. "Any party may move for summary judgment on any counterclaim as if it was an independent action." United Oil Co. v. Urban Redevelopment Commission,
Good faith is a subjective standard and, therefore, a question of fact. See Phillips v. Thomas,
Finally, the CUTPA allegation as to the first count is the last issue for the Court to consider.
Under CUTPA, "(n)o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Connecticut General Statutes Section
(1)(W)hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (competitors or other businessmen).
A-G Foods, Inc. v. Pepperidge Farm, Inc.,
In its reply memorandum of law, the plaintiff asks for sanctions. The Court has reviewed the extensive pleadings in this file. After careful consideration of all the facts and applying the standards enumerated in Fattibene v. Kealey,
Mihalakos, J.