64 Conn. App. 9 | Conn. App. Ct. | 2001
Opinion
The defendants, Rear Still Hill Road, LLC, and Emerald Realty, Inc., appeal from the judgment of strict foreclosure rendered in favor of the plaintiff, Anthony Barasso, after the trial court granted the plaintiffs motion to strike special defenses pleaded by the defendants. The defendants claim that the court improperly granted the motion because the motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41.
The plaintiff initiated this foreclosure action on September 2, 1998, and on or about December 21, 1998, the defendants filed an answer and special defenses. Thereafter, the plaintiff filed a motion to strike the special defenses.
We begin by noting that the record is adequate for our review. As the plaintiff has pointed out, the record on appeal; see Practice Book § 68-2; does not contain a memorandum of decision or a transcribed copy of an oral decision signed by the trial court as required by Practice Book § 64-1 (a). A signed transcript from the hearing on the motion to strike, however, was distributed to this court before this appeal was argued. See Practice Book § 64-1 (b). Because the transcript includes detailed rulings made by the trial judge and is more than an “autographed colloquy between the trial court and trial counsel”; Auric Answering Service, Inc. v. Glenayre Electronics, Inc., 54 Conn. App. 86, 88, 733 A.2d 307, cert. denied, 250 Conn. 926, 738 A.2d 653 (1999); we will not exalt form over substance and refuse to review this appeal. See Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 699, 740 A.2d 885 (1999), cert. denied, 252 Conn. 922, 747 A.2d 518 (2000). We now turn to the merits of the defendants’ claim.
On appeal, the defendants’ claim that the court improperly granted the plaintiffs motion to strike the defendants’ special defenses. The defendants claim that the plaintiffs motion was fatally defective because it failed to state the alleged grounds of insufficiency as required by Practice Book § 10-41. In response, the plaintiff claims that his motion to strike was not fatally defective because the attached memorandum of law in support of his motion set forth the specified reasons of insufficiency. We agree with the defendants.
“Our standard of review is undisputed. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary.” (Internal quotation marks
Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency “shall distinctly specify the reason or reasons for each such claimed insufficiency.” Motions to strike that do not specify the grounds of insufficiency are “fatally defective” and, absent a waiver by the party opposing the motion, should not be granted.
In the present case, the plaintiffs motion clearly fails to specify the grounds of insufficiency. It merely states: “A Memorandum of Law in support of this motion, which discusses the legal insufficiency of each Special Defense, is attached.” Accordingly, the plaintiffs motion is fatally defective. The defendants brought this issue to the attention of the court, and the plaintiffs motion should not have been granted. The plaintiffs assertion that his motion is not fatally defective because the specific grounds of insufficiency are set forth in a supporting memorandum of law is meritless. See Morris v. Hartford Courant Co., supra, 200 Conn. 683 n.5.
Therefore, because the plaintiffs motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41, we must conclude that the court improperly granted the plaintiffs motion to strike.
The judgment is reversed and the case is remanded with direction to deny the plaintiffs motion to strike and for farther proceedings in accordance with law.
In this opinion the other judges concurred.
Practice Book § 10-41 provides: “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections [of the rules of practice] shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”
We note that the defendants also have claimed on appeal that the court (1) failed to credit excess payments on another debt toward the mortgage
The plaintiffs motion to strike states: “The plaintiff in the above entitled matter moves to strike the following from the defendant[s’] Special Defenses, the First through the Thirteenth Special Defenses. The Plaintiff makes this request because the mentioned Special Defenses are insufficient as a matter of law.
“A Memorandum of Law in support of this motion, which discusses the legal insufficiency of each Special Defense, is attached.”
We note that in Bouchard v. People’s Bank, 219 Conn. 465, 468 n.4, 594 A.2d 1 (1991), and in Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986), our Supreme Court considered the fatally defective motions to strike in the form that they were presented to the trial courts because the parties opposed to the motions failed to object to their form at trial and because Practice Book § 10-41 is not jurisdictional in nature. In the present case, however, the defendants properly raised this issue in their objection to the plaintiffs motion to strike.