38 Conn. App. 571 | Conn. App. Ct. | 1995
This is a mortgage foreclosure action in which the defendant Robert A. Ginsburg, trustee, appeals from the judgment against him on his stricken counterclaims. He claims that the trial court improperly (1) found that a junior encumbrancer cannot raise a defense or counterclaim that does not relate to the making, validity, or enforcement of the mortgage note, (2) found that there was no legal or equitable basis on which he could raise special defenses and counterclaims, (3) found that he could not invoke the clean hands doctrine in spite of allegations of inequitable conduct by the plaintiff, (4) and failed to consider the allegations of bad faith and inequitable conduct by the plaintiff. We affirm the judgment of the trial court and dismiss the appeal in part.
The plaintiff, Mechanics Savings Bank, brought an action against the defendant Townley Corporation to foreclose a mortgage on a parcel of property located in Hartford. Ginsburg, a junior encumbrancer, was also named as a defendant because he held a subsequent lien on the subject property. Ginsburg filed an answer, special defenses and counterclaims, alleging that the
As a threshold matter, we must first consider the question of whether this appeal is properly before us. In his notice of appeal, the defendant states that he is appealing only from the judgment on his stricken counterclaims. In his statement of issues, however, the defendant complains about the striking of his special defenses as well as the striking of his counterclaims.
The granting of a motion to strike a special defense is not a final judgment and is therefore not appealable. Breen v. Phelps, 186 Conn. 86, 90, 439 A.2d 1066 (1982). The striking of special defenses neither terminates a separate proceeding nor so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Practice Book § 4002 (b) does not help the defendant because, although it allows appeal after judgment on certain stricken pleadings, it cannot be extended to include special defenses.
Practice Book § 4002 (b) does, however, allow an appeal when an entire counterclaim has been stricken and judgment has been rendered thereon. We will, therefore, review the judgment on the counterclaims. Insofar as they relate to the judgment on the counterclaims, we will consider the defendant’s first two claims together.
The trial court struck the defendant’s counterclaims because they did not satisfy the requirement of Practice Book § 116 that counterclaims arise out of the same transaction that is the subject of the plaintiff’s complaint.
“The transaction test is one of practicality, and the trial court’s determination as to whether that test has been met ought not be disturbed except for an abuse of discretion. . . . Where the underlying purposes of Practice Book § 78 [now § 116], to wit, judicial economy, avoidance of multiplicity of litigation, and avoid-
The disparity between the subject matter of the plaintiffs complaint and that of the defendant’s counterclaims warranted the trial court’s conclusion that they did not arise from the same transaction and that, therefore, joinder was impermissible. The trial court did not abuse its discretion in striking the defendant’s counterclaims.
Because our decision on the first two issues is dis-positive of the appeal, we do not reach the defendant’s third and fourth claims.
That portion of the defendant’s appeal that pertains to the defendant’s special defenses is dismissed; the judgment striking the defendant Ginsburg’s counterclaims is affirmed.
In this opinion the other judges concurred.
Practice Book § 4002 (b) provides in relevant part: “Where an entire complaint, counterclaim or cross complaint has been stricken, the trial court may, pursuant to Sec. 157, render judgment on such stricken complaint, counterclaim or cross complaint. ...”
Practice Book § 116 provides in relevant part: “In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction . . . which is the subject of the plaintiffs complaint. . . .”
Although bearing two street addresses, it is apparently only one piece of property.