Opinion
FSTCV166029529S
09-12-2018
Henry PASCARELLA v. Robert SILVER
UNPUBLISHED OPINION
POVODATOR, JTR
Background
This is something in the nature of a preemptive-type action, having its origins in an agreement between the parties that was reached in the late 1990s. A handwritten document identified by the parties as the "Participation Agreement" provided for the defendant to provide up-front funding in exchange for a share of distributions relating to ownership/operation of a commercial property in Greenwich, as detailed (with numerous conditions) in that agreement.
With a somewhat tortuous history, litigation commenced by the defendant in 2006 came to a conclusion in 2016; see, R.S. Silver Enterprises, Inc. v. Pascarella, 163 Conn.App. 1, 134 A.3d 662; cert. denied, 320 Conn. 929, 133 A.3d 460 (2016). In that earlier proceeding, the defendant successfully claimed that the plaintiff had not made required distributions to the defendant, with the judgment reflecting damages proven through approximately 2008.
There had been an earlier appeal, resulting in the matter being remanded to the trial court for consideration of the merits of a special defense that the Appellate Court concluded had been improperly stricken; R.S. Silver Enterprises, Inc. v. Pascarella, 148 Conn.App. 359, 86 A.3d 471 (2014).
The defendant, or perhaps more accurately the principal of the defendant, having continued to make representations to third parties concerning an interest in the subject property, the plaintiff has commenced this action, seeking declaratory relief to the effect that the defendant has no further rights to further compensation under the Participation Agreement and therefore no basis for any claims or legal proceeding based on such allegedly-non-existent rights. Specifically, the plaintiff’s claim that under principles of claim preclusion under the doctrine of res judicata, the defendant has no further right to sue the plaintiffs for claimed breach of the Participation Agreement.
This proceeding initially was commenced against Robert Silver, individually, as well as R.S. Silver Enterprises, Inc.; subsequently, a withdrawal was filed as to the individual defendant. Therefore, although Mr. Silver is the "named defendant" in this proceeding, all further references to the defendant will be intended to be a reference to the defendant entity, R.S. Silver Enterprises, Inc.
Early in the proceedings (approximately 2 months after the return date), the plaintiffs moved for summary judgment on their declaratory judgment application, asserting that res judicata was determinative of the outcome. The court denied the motion, concluding that there were factual issues that needed to be resolved, which ruling was appealed by the plaintiffs. The Appellate Court dismissed the appeal, and the trial-level proceedings have continued.
While the summary judgment motion was pending and also relatively early in the proceedings (approximately 3 1/2 months after the return date), the defendant filed counterclaims, premised on the position that the earlier litigation did not put an end to the defendant’s rights under the Participation Agreement. While the earlier proceeding may have determined the respective rights and obligations of the parties, and determined the damages sustained by the defendant through the time of trial as a result of the breach by the plaintiffs, the judgment left open the ability to claim subsequently-incurred damages for subsequent/continuing breach(es). The plaintiffs, in turn, have filed a number of special defenses, and the defendant is challenging the legal sufficiency of several of those defenses by means of a motion to strike. The defendant filed a supporting memorandum, and the plaintiffs have filed an objection also accompanied by a supporting memorandum.
Discussion
This appears to be the fifth lawsuit arising from the handwritten agreement executed in 1997 that the parties have denominated the Participation Agreement, with lawsuits having been commenced in 2003 (dismissed), 2006 (tried on merits and affirmed on appeal in 2016), 2011 (withdrawn), 2012 (withdrawn), and this action commenced in 2016. Simplistically, the issue in this case is whether the defendant continues to have a right to participate, under the Participation Agreement.
There has been additional litigation, at least somewhat related to the Participation Agreement. Gillon v. Bysiewicz, 105 Conn.App. 654, 939 A.2d 605 (2008) effectively was an effort to challenge the reinstatement of the defendant by the Secretary of State (where the reinstatement was intended to correct the reason for the dismissal of the 2003 action, and is an issue in one of the defenses discussed below).
In the 2006 action, the current defendant prevailed and was awarded a substantial judgment. In this action, the plaintiffs seek a declaratory ruling that the outcome of the 2006 action was a final resolution of the respective rights of the parties under the Participation Agreement such that there is and can be no possible basis for any further claims of relief as might be asserted by the defendant. The defendant, of course, disagrees.
Given the highly adversarial nature of the relationship between the parties over the last 15 years, it should not be surprising that the defendant has filed a counterclaim, claiming entitlement to further relief under the Participation Agreement- essentially, incremental damages (and related relief) since the trial of the 2006 proceeding. As noted, in response to the claims asserted by the defendant, the plaintiff has filed a number of special defenses, and the defendant has moved to strike a number of those defenses.
As discussed in the decision denying summary judgment, a somewhat more technical characterization of the dispute is whether the earlier litigation resolved a dispute involved a total breach/repudiation of the contract between the parties, terminating their relationship and all rights and responsibilities under the Participation Agreement, or whether the litigation resolved what amounted to a partial breach, reflecting a claim for relief for an interval of time under an agreement that continues to define the parties’ rights and responsibilities under the Participation Agreement.
Technically, Connecticut is a fact-pleading jurisdiction, such that a party asserting affirmative claims is required to allege the facts (but not evidence) on which any affirmative claim is based. Again, technically, this requirement applies to special defenses as well as claims asserted in a complaint or counterclaim, although the court observes that as a matter of practice, it is not uncommon for a party to assert a special defense by little more than stating the nature of the defense, e.g., a statement that the claim is barred by the applicable statute of limitations (often not even identifying the specific statute) or that an equitable claim is barred by unclean hands. However, the possible existence of a not-uncommon practice is not a substitute for compliance with required procedures, except by way of consent or acquiescence, when an adversary seeks compliance with proper procedures. In challenging several of the special defenses to the counterclaim, the defendant contends that there are material inadequacies in the facts as asserted in the identified special offenses.
Before addressing the merits of the individual challenges to special defenses, it may be helpful to identify the context in which these challenges are being made. Practice Book § 10-50 provides:
No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff’s own.
Although perhaps not often viewed from this perspective, the rule does not require a party pleading a special defense to assert facts already present in the complaint being challenged, but rather only requires the party to assert any "new" facts upon which that party intends to rely. The premise of a special defense is that, even if the assertions of the plaintiff are true, the plaintiff cannot prevail because of the additional facts being asserted. If a party is relying, in whole or in part, on facts already asserted by the plaintiff, then there would not be any obligation to assert those facts- only additional facts. This is why, in limited circumstances, a motion to strike has been deemed an appropriate vehicle for testing actual applicability of a statute of limitations; see. e.g., Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993); and often is the vehicle for testing applicability of a defense of governmental immunity based on discretionary functions, even before any actual defense is asserted; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). The court recognizes that no claim is being made that the merits of any defense in this case should be adjudicated on the basis of a motion to strike, but the point is that it is permissible for a defendant to rely upon the allegations already present in a complaint, without the need to repeat those allegations; only "new" facts must be asserted.
A. Waiver
Initially, the defendant challenges the third special defense to the counterclaim asserting waiver. The defendant contends that the plaintiffs merely have alleged the passage of time without a claim being asserted, without any allegation implying much less explicitly asserting an intent to relinquish a known right. The defendant acknowledges, citing Schreck v. City of Stamford, 72 Conn.App. 497, 500, 805 A.2d 776 (2002), that waiver may be implied from conduct and surrounding circumstances, when appropriate.
In connection with a motion to strike, the court is required to give the non-moving party the benefit of all reasonable favorable inferences; Coste v. Riverside Motors, Inc., 24 Conn.App. 109, 111, 585 A.2d 1263 (1991).
A fair reading of the allegations set forth in the special defense asserting waiver reveals that the plaintiffs are not relying solely on the passage of time, without a claim having been asserted by the defendant.
The defense incorporates all of the paragraphs in the introductory portion of the special defenses, characterized as facts common to all defenses. Paragraph 9 states that in the earlier proceeding, the defendant "had the opportunity to seek future damages and indeed in pleading filed in that action expressed the intent to do so," proceeding to discuss expert disclosures relating to future damages as well as a reference to a statement made in the trial management order relating to prospective damages.
Paragraph 14 of the special defense asserts:
In addition to having the opportunity to assert future damages in the 2006 Action and failing to do so, Counterclaim-Plaintiff waited approximately eight years after judgment in the 2006 Action to reassert any claims for damages under the Participation Agreement, and made no effort in the interim to perform its obligations under the Participation Agreement, including repaying the Promissory Note and indemnifying Counterclaim-Defendants for various costs incurred for management of the Commercial Property.
Thus, this special defense asserts that there had been steps taken to assert prospective claims for relief in the 2006 proceeding, which seemingly had not been pursued (abandoned?) in that proceeding; that there had been no performance by the defendant of its obligations under the Participation Agreement; and that the defendant had "waited approximately eight years after judgment in the 2006 Action to reassert any claims for damages under the Participation Agreement." This is more than merely stating a passage of time, and appears to assert, adequately, the facts upon which the plaintiffs intend to rely with respect to the claim of waiver. The plaintiffs have alleged facts that might be sufficient to support an inference of waiver, and the defendant has not attempted to demonstrate the inadequacy of those facts to support such an inference.
It is clear, then, that the plaintiffs have alleged more than the mere passage of time. The court can only consider the grounds identified by the moving party in the motion to strike; Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980); see, also, Practice Book § 10-39(b); and therefore the motion to strike, as directed to the third special defense, must be denied.
B. Estoppel
The defendant next challenges the special defense asserting estoppel. Our courts often have noted the similarity between estoppel and implied waiver, while recognizing that there is a technical distinction; see, e.g., Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 563-66, 316 A.2d 394 (1972). The defendant relies upon the required element of estoppel that there be some element or quality of reliance or change of position by the party claiming estoppel; id., 563.
Implicitly acknowledging that there is some requirement of reliance or change of position, after incorporating the 14 paragraphs of the waiver special defense, the plaintiffs assert a defense-specific ¶ 15:
Counterclaim-Defendants relied upon the conduct of Counterclaim-Plaintiff as set forth above in continuing with the understanding that Counterclaim-Plaintiff’s interest under the Participation Agreement had been abandoned.
(Paragraph 16 then states that the aforementioned conduct and reliance constitute an estoppel.)
A "[motion to strike] admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). Mercer v. Champion, 139 Conn.App. 216, 223 (2012).
The court cannot treat the claim that the plaintiffs’ continued "understanding that the [defendant’s] interest under the Participation Agreement had been abandoned" as constituting reliance or a change of position, within the concept of estoppel. Reliance/change of position requires either having done something that otherwise would not have been done, or not doing something that otherwise would have been done, and a pure continuance of the status quo, without articulated reliance for not changing position (e.g., what would have been done, but for reliance), does not seem to satisfy this requirement.
Despite the absence of any allegation seemingly suggesting such an inference, the plaintiffs contend that "[i]t can reasonably be inferred from the Pascarellas’ well-pleaded facts that they would have adopted a different strategy in defending the 2006 Action if Silver had made the claims in the 2006 action that it now asserts in its Counterclaims- that it is entitled to a continuing interest in the Participation Agreement and that the Participation Agreement was not terminated."
This appears to be circular if not self-contradictory. The estoppel defense incorporates the allegations of the waiver defense, and the waiver defense asserts that the defendant had effectively abandoned initially-asserted claims for prospective relief, and then waited eight years to assert such claims. Are the plaintiffs suggesting that if they had known that the decision by the defendant not to pursue prospective relief was not intended to be a total abandonment of such claims, they would have attempted to force the defendant to pursue such a claim? Assuming that such might be a possible or reasonable strategy, perhaps assisted by the benefit of approximately a decade of hindsight, the court cannot treat that as a reasonable inference to be drawn from the allegations actually set forth. (The point at which there was a decision not to pursue future damages is not specifically identified, and there is no "obvious" mechanism to force an adversary to pursue an aspect of damages that it does not wish to pursue at that time.)
Accordingly, the motion to strike is granted with respect to the fourth special defense, asserting estoppel.
C. Unclean Hands
The fifth special defense asserts unclean hands, and the parties appear to agree that the conduct constituting such a defense must have some relationship to the claims pending in this proceeding. The allegations of the defense assert that the defendant did not pay income taxes on the money paid some 20 years ago at the time of the formation of the Participation Agreement, and that prior to the institution of the 2006 action, the defendant had made fraudulent representations to the State for purposes of reinstating its corporate status. In the objection to the motion to strike, the plaintiffs only refer to the latter, making no mention of the claimed failure to pay taxes in the 1990’s. The court deems that to be a recognition of the absence of any possible connection between the claimed failure to pay income taxes and this proceeding, and essentially an abandonment of that aspect of this defense.
See, footnote 3 and its reference to Gillon v. Bysiewicz.
The plaintiffs summarize their objection to this aspect of the motion to strike as follows:
In this Declaratory Judgment action, the particular controversy at issue is comprised of the claims and allegations in the 2006 Action. The Pascarellas allege in their Fifth Special Defense that Silver made fraudulent statements to the State in order to get its corporate existence reinstated so that it could bring the 2006 Action and assert those claims. Thus, Silver’s Counterclaims in this action with respect to the 2006 Action are ‘inseparably connected to [Silver’s] prior fraud,’ which was perpetrated for the purpose of bringing claims against the Pascarellas.
Only in an indirect sense is "the particular controversy at issue ... comprised of the claims and allegations in the 2006 Action." The claims and allegations in that earlier proceeding are likely to be presented and considered (in something of an evidentiary sense), but the controversy at issue, particularly with respect to the competing claims for declaratory relief, focuses on the scope/effect of the judgment rendered in that earlier proceeding, after that court had considered all of the underlying claims and allegations- was the judgment conclusive as to all rights and responsibilities as between the parties under the Participation Agreement, or was it only determinative of the rights and responsibilities through the time of trial? The plaintiffs contend that it was wholly determinative, whereas the defendant contends that it only determined rights and responsibilities through the time of trial, thereby not precluding the defendant’s claims for additional relief, beyond the date of that earlier trial. Therefore, if the plaintiffs are correct, there can be no claims by the defendant. Conversely, however, if the plaintiffs do not prevail on the contention that after resolution of the 2006 action, the defendant had no further rights under the Participation Agreement, then the only conduct/events of relevance to the defendant’s claims is that which occurred after the trial of the 2006 action.
In other words, the plaintiffs’ contention that the "prior fraud" of the defendant is connected to litigation might apply to the 2006 litigation, whereas the defendant’s contentions in this proceeding only relate to post-2006-litigation events (and rights/responsibilities)- specifically, damages incurred starting in or after 2009. From an alternate perspective, the plaintiffs are engaging in a collateral attack on the 2006 proceeding, claiming that the defendant’s standing in that proceeding was tainted.
Both parties have cited authorities for the proposition that the conduct alleged to constitute unclean hands must relate to the "particular transaction under consideration, for the court will not go outside the case for the purpose of examining the conduct of the complainant in other matters ..." Thompson v. Orcutt, 257 Conn. 310, 310-11 (2001) (quoted by the plaintiffs at page 5 of their objection (and also referenced by the defendant) ). The requirement of a sufficient nexus between the conduct alleged to constitute unclean hands and the controversy before the court is analogous to the relationship between cause in fact and proximate cause. In effect, the plaintiffs are contending that "but for" the fraud perpetrated by the defendant, we would not be here today, but even that is somewhat speculative- assuming there had been fraud and the application for reinstatement as a corporation had been rejected on that basis, there is the implicit assumption that there would have been no proper grounds on which reinstatement might have been available. Indeed, the plaintiffs’ effective position is that, notwithstanding the 2006 action resulting in a determination that the Participation Agreement was enforceable by the defendant with entitlement to substantial relief, the claimed fraudulent conduct with respect to reinstatement prior to the 2006 action is a perpetual exoneration of liability after the 2006 action- analogous to a "get out of jail, free" card that remains effective after the 2006 action had gone to judgment.
The court concludes that the allegations of this special defense have insufficient connection to the issues raised by the defendant in its counterclaim, and therefore the defense is legally insufficient. Accordingly, the motion to strike is granted with respect to the defense of unclean hands.
In Gillon v. Bysiewicz (see, footnote 3), the dispositive issue was the lack of standing of any individual with respect to challenging the determination by the Secretary of State to re-instate a corporate entity- specifically, the defendant. "Here, our review [of the relevant statute] reveals that there is nothing in the plain language of the statute, its legislative history or the policy considerations underlying the statute suggesting that the dissolution and reinstatement provisions of the act were intended to protect the private contractual interests of third parties." 105 Conn.App. At 662. Any fraud that may have been perpetrated, as discussed in that decision, is a matter of governmental operations and not a matter of private contractual rights, further establishing the lack of any direct relationship between the claimed fraud and this transaction.
D. Statute of Limitations
The defendant next challenges the legal sufficiency of the special defense asserting the statute of limitations. The special defense incorporates 11 paragraphs that are characterized as common to all defenses, but those paragraphs contain no mention of any date later than 2009. The defense-specific allegations contained no allegations mentioning any date, but instead only a conclusory statement that "Counterclaim-Plaintiff’s claims are barred by the Statute of Limitations as set forth in Conn. General Statutes 52-576."
In their objection, the plaintiffs, after quoting the applicable statute, state that "the Pascarella’s have alleged in their Sixth Special Defense, based upon Conn. Gen. Stat. 52-576, that Silver brought the 2006 Action by Complaint dated September 15, 2006. Construing the pleading in the light most favorable to maintaining sufficiency, the Motion to Strike must be denied." Then, after attempting to distinguish the authorities cited by the defendant, the plaintiffs explain their position:
Here, the Pascarellas have alleged that Silver first brought breach of contract claims against them based upon the Participation Agreement in 2003, and then again through the Accidental Failure of Suit Statute on September 15, 2006. It can reasonably be inferred from these allegations that any cause of action Silver may have had for breach of contract under the Participation Agreement accrued prior to those dates and therefore, any actions Silver seeks to bring on the Participation Agreement after September 15, 2015 (at the latest) are time-barred.
At the outset, although perhaps symptomatic of this argument, the court does not understand the source of the date "September 15, 2015." It is not six years after September 15, 2006 (a date with identified significance), and 2009 appears to have been the year in which the 2006 action was tried but there is no indication that September 15 of that year has any particular significance such that it is the starting date for a six-year period. Thus, the court cannot determine whether that date is a typographical error, or some form of hybrid date representing approximately six years after the trial, or something else. The court and the defendant are left to guess at what the plaintiffs claim to be the starting point for any applicable limitations period.
Focusing on the substance of the argument, it is not reasonably inferred, but rather would be unreasonable to infer, that the claims asserted in the counterclaim are the same claims as asserted and prosecuted in the 2006 litigation- except to the extent that they are similar/parallel. If the defendant truly were attempting to litigate claims that arose prior to 2006 or even 2009, then aside from seeking to relitigate a claim on which it already prevailed, the defendant would be inviting a probably "slam-dunk" claim of res judicata. Conversely, that is explicitly contradicted by the assertions in the counterclaim. Thus, ¶ 19 of the counterclaim explicitly states that the plaintiffs "have failed to pay to [the defendant] one half of the cash distributions resulting from the operations of SPD from January 1, 2009 to the present " (emphasis added). All of the counts of the counterclaim incorporate this paragraph, and all are focused on conduct commencing 2009 rather than ending in or about 2009. The claims may be similar in the sense that the defendant is again claiming that the plaintiffs have not paid what is due, but the existence and amount of anything that might be due, and the existence of a continued right to be paid (and continuing breach), are issues that need to be litigated anew.
Perhaps simplistically, the defense asserted by the plaintiffs assumes a terminal date of the period in which relevant conduct occurred which approximates the commencement date of the actual claim being asserted by the defendant. Or. to put it another way, the defense applies to a period of time that largely if not totally is not encompassed by the counterclaim, assuming any inferences can be made as to the period intended to be covered by the defense.
Therefore, the defense predicated on the statute of limitations is ordered stricken.
E. Laches
Finally, the defendant has moved to strike the special defense asserting laches (addressed to the equitable claims for a constructive trust and an accounting). The defense incorporates all of the allegations of the defense predicated on estoppel, adding allegations that the defendant "unduly delayed pursuing its claims" and that the "delay was inexcusable and has prejudiced [the plaintiffs] by, among other things, having to defend the counterclaim."
The defendant contends that the plaintiffs have failed to allege sufficient facts, particularly with respect to the prejudice aspect of a claim of laches. Indeed, this is similar to the estoppel analysis, above, as suggested by the incorporation of all allegations in the estoppel defense with the addition only of the conclusory allegations quoted in the preceding paragraph of this decision.
Taken literally, the claim that "having to defend the counterclaim" is a form of prejudice would effectively make any claim of laches legally sufficient in any case, because in every case in which there is an asserted claim of delay in initiating a claim, the party defending that claim would be in a position of "having to defend the [complaint/counterclaim]."
The plaintiffs’ claimed justification as set forth on pp. 7-8 of their objection to the motion suffers from the same problem as their statute of limitations argument. They are focusing on what could have been claimed in the 2006 action. Thus, at page 8, they state: "[A]fter having already been through a full litigation including a full trial after which judgment entered against them for breach of the Participation Agreement- must defend yet another action based on the same transaction and operative set of facts which Silver inexcusably failed to raise it sooner." While the same Participation Agreement forms the basis for the earlier action and this one, the primary issues in this case will not be ab initio interpretation of the agreement and application of that agreement to the then-existing facts and whether as of 2006 the plaintiffs had been in breach of the agreement. Instead, the court will have to determine the conclusive/preclusive effect, if any, of the earlier judgment (which encompassed a determination of enforceability of the agreement), and if that judgment does not have any preclusive effect (notwithstanding the plaintiffs’ claim of res judicata), then whether the plaintiffs have continued to breach the agreement and the damages arising from that continued breach. To the extent that the plaintiffs claim that the defendant "had an opportunity to and expressed an intention to pursue future damages in the 2006 Action but failed to do so," that is part of the issue of preclusive effect of the earlier judgment (and waiver). With respect to the damages that might be recoverable going forward, in the 2006 action it would have been a matter of estimating or projecting probable future damages, whereas in the present context there are claims seeking quantification of actual damages, starting with the conclusion of that earlier action, and running at least through the present. In this regard, the plaintiffs cannot claim any impairment of ability to offer proof, because the evidence to be offered as to damages in the current case since approximately 2009 did not exist at the time of the earlier proceeding. Any evidence that might have been offered as to projections in the context of the 2006 proceeding- at least for the ensuing decade- would be of no value in this case if the court ever gets to the issue of damages.
Absent sufficient allegations of actual prejudice resulting from an undue delay, as well as a factually-plausible basis for claiming the delay was undue, the defense is legally insufficient, and is ordered stricken.
Although not explicitly incorporated into the special defense asserting laches (seventh special defense), the introductory portion of the special defenses contains a section captioned "facts common to all special defenses" and paragraph 12 of the "facts common to all special defenses" recites that "[t]he trial court’s decision was affirmed by the Connecticut Appellate Court on February 9, 2016 (163 Conn.App. 1), and on March 23, 2016, the Connecticut Supreme Court denied Plaintiffs’ petition for certiorari (320 Conn. 929), and the Judgment obtained by Defendants in the 2006 Action became final."
Conclusion
The court has noted that in many cases, parties assert special defenses consisting of a phrase or a single sentence, and absent objection (motion to strike), the case proceeds to trial on that basis. Here, each of the special defenses to the counterclaims consists of more than 10 paragraphs, with the defendant contending that several are legally insufficient, particularly with respect to factual content. As set forth above, applying an appropriate legal standard, most of the challenged defenses are legally insufficient. The court is obligated to interpret pleadings in a reasonable and not overly-technical fashion, consistent with the intended theory. Pleadings serve an important function in delineating the scope of issues that will need to be addressed, and while the principle most often is articulated in terms of a complaint; see, e.g., Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn.App. 194, 200, 756 A.2d 309 (2000), the rationale is equally applicable to defenses being asserted. The defendant is entitled to clarity- and legal sufficiency- with respect to the defenses asserted against its counterclaims.
For the reasons stated above, the motion is denied as to the third special defense; the motion to strike is granted with respect to the fourth, fifth, sixth and seventh special defenses.
In Gillon v. Silver, J.D. Stamford, FSTCV065001203S, the court’s memorandum of decision (# 156.00) referred to the ongoing litigation between the plaintiffs and the defendant as related to the case then before the court. As reflected by the court docket (http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=FSTCV065001203S), an appearance was filed on behalf of Mr. Pascarella in his status as a witness (non-party), and the decision reflects efforts by the Silver defendants to make the conduct of Mr. Pascarella a focus of attention. The Participation Agreement was discussed at page 29 of the decision. Robert Gillon was the plaintiff in both cases.