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*********************************************** 
SOVEREIGN BANK v. ANGELA HARRISON

(AC 38937)

Alvord, Sheldon and Bear, Js.

Syllabus

The plaintiff sought to foreclose a mortgage on certain real property of the

defendant, who filed an answer and three special defenses. Thereafter,

the plaintiff unilaterally withdrew its action and shortly thereafter commenced a foreclosure action against the defendant in federal court.

Subsequently, the trial court granted the defendant’s motion to restore

the case to the docket. In her motion to restore, the defendant claimed

that her third special defense, which alleged that the plaintiff did not

properly account for payments made by the defendant, was more properly construed as a counterclaim and therefore, survived the withdrawal

of the plaintiff’s action. On appeal, the plaintiff claimed that the trial

court erred in interpreting the defendant’s special defense as a counterclaim and, therefore, lacked the authority to restore the case to the

docket. Held that the trial court lacked authority to restore the case to

the docket because there was no pending counterclaim as of the date

of the withdrawal: that court, in deciding whether the allegation in the

defendant’s third special defense constituted a counterclaim, incorrectly

focused its analysis on the question of whether the defendant’s allegation

arose out of the same transaction as that described in the plaintiff’s

complaint, and failed to determine whether the third defense asserted

an independent cause of action, and after the correct standard was

applied for determining whether the defendant pleaded a counterclaim

or a special defense, it was clear that the allegation in the defendant’s

third special defense could not properly be construed as a counterclaim,

as nothing in the defendant’s allegation could reasonably be interpreted

as a claim of entitlement to affirmative relief because she neither explicitly requested any judicial redress or relief nor alleged any facts from

which it could be inferred that she was entitled to such relief, and

although pleadings must be construed broadly and realistically, rather

than narrowly and technically, this court could not read into the defendant’s answer a prayer for relief or factual allegations that simply were

not there; moreover, because the allegation that the plaintiff did not

properly account for the defendant’s payments challenged the amount

of the debt owed the plaintiff, which may be raised by way of special

defense, and in the absence of any suggestion that she made payments

in excess of the amount of the debt, the defendant would not be entitled

to any affirmative relief under that allegation, the defendant’s third

special defense could not reasonably be construed as stating an independent cause of action, and, therefore, the trial court erred in construing

it as a counterclaim.

Argued May 23—officially released August 28, 2018

Procedural History

Action to foreclose a mortgage on certain real property owned by the defendant, and for other relief,

brought to the Superior Court in the judicial district of

Stamford-Norwalk; thereafter, the plaintiff unilaterally

withdrew the action; subsequently, the trial court,

Mintz, J., granted the defendant’s motion to restore

the case to the docket, and the plaintiff appealed to

this court. Reversed; judgment directed.

Peter A. Ventre, with whom, on the brief, was Lindsey

A. Goergen, for the appellant (plaintiff).
Opinion

BEAR, J. In this foreclosure action, the plaintiff, Sovereign Bank,1 appeals from the order of the trial court

granting the motion of the defendant, Angela Harrison,2

to restore her third special defense to the docket following the plaintiff’s voluntary withdrawal of its action.3

The plaintiff’s principal claim on appeal is that the trial

court erred in interpreting the defendant’s special

defense as a counterclaim and, therefore, lacked the

authority to restore it to the docket.4 We agree and,

accordingly, reverse the order of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff commenced the present

action on September 9, 2010, seeking to foreclose a

mortgage on certain real property in Norwalk that the

defendant had executed in 2005 as security for a note

in the principal amount of $200,000. The plaintiff alleged

in its complaint that it was the holder of the note and

mortgage and that the defendant was in default under

the note and mortgage for failing to make payment

as agreed.

On June 24, 2011, the defendant filed an answer and

three special defenses. The defendant alleged in the first

two special defenses that the plaintiff’s predecessor in

interest had (1) misrepresented the terms and conditions of the loan and (2) fraudulently entered false information on the defendant’s loan application and sold the

defendant a loan that she could not possibly afford. As

to her third special defense—the only one at issue in

the present appeal—the defendant alleged that ‘‘[t]he

plaintiff did not properly account for payments made

by the defendant.’’ The plaintiff filed a reply denying

the defendant’s special defenses on December 2, 2014.

On November 23, 2015—prior to the scheduled trial

date—the plaintiff unilaterally withdrew its action pursuant to General Statutes § 52-80,5 and shortly thereafter

the plaintiff commenced a foreclosure action against

the same defendant in federal court.6 As of the date of

the withdrawal, the defendant had not effectively filed

a counterclaim.7 On November 30, 2015, the defendant

filed a request for leave to amend her answer to assert

a counterclaim, to which the plaintiff objected. At the

conclusion of the December 22, 2015 oral argument on

the objection, the court ruled from the bench that it

did not have jurisdiction to consider the defendant’s

request because no counterclaim had been pending

when the plaintiff withdrew its action. The court suggested, however, that it might have the ability to consider the request for leave to amend if the defendant

first filed a motion to restore the case to the docket.

Pursuant to the court’s suggestion, on January 28,

2016, the defendant filed a motion and an accompanying

memorandum of law to restore her special defenses

and counterclaim to the docket or, alternatively, to
restore the case to the docket (motion to restore).8

In

her memorandum of law, the defendant argued, inter

alia, that her third special defense9 was more properly

construed as a counterclaim and that, as such, it survived the withdrawal of the plaintiff’s action pursuant

to Practice Book § 10-55.10 After hearing oral argument

on the motion on February 8, 2016, the court issued an

oral decision granting the motion to restore.11

As set forth in its ruling and subsequent articulation,12

the court, relying on 225 Associates v. Connecticut

Housing Finance Authority, 65 Conn. App. 112, 121,

782 A.2d 189 (2001), determined that, because the defendant’s third special defense arose out of the same transaction as that underlying the plaintiff’s action, it was

more properly construed as a counterclaim. Consequently, the court concluded that the plaintiff’s withdrawal of its action did not affect the pendency of such

counterclaim and that the defendant thus had a right to

have the counterclaim adjudicated. The court therefore

held that it ‘‘had jurisdiction to restore the case to the

docket, even though the plaintiff withdrew the case.’’

Accordingly, the court ordered that ‘‘the case [be]

restored to the docket for the sole purpose of the trial

on the counterclaim.’’ This appeal followed.

On appeal, the plaintiff claims that the trial court

acted in excess of its authority in restoring the defendant’s third special defense to the docket. Specifically,

the plaintiff argues that the defendant’s special defense

could not properly be construed as a counterclaim

because it failed to allege any facts that would entitle the

defendant to seek judicial relief through an independent

cause of action against the plaintiff. The plaintiff further

contends that, because the special defense did not constitute a counterclaim and thus did not survive the withdrawal of the plaintiff’s action as provided in Practice

Book § 10-55, the court had no ‘‘continuing subject matter jurisdiction over the matter’’ after the plaintiff withdrew its action. Therefore, the plaintiff claims that the

court ‘‘had no authority to restore [the] case for the

purpose of a counterclaim when, in fact, no counterclaim existed’’ prior to the withdrawal of the action.

We first set forth our standard of review. ‘‘Any determination regarding the scope of a court’s subject matter

jurisdiction or its authority to act presents a question

of law over which our review is plenary.’’ Tarro v.

Mastriani Realty, LLC, 142 Conn. App. 419, 431, 69

A.3d 956, cert. denied, 309 Conn. 912, 69 A.3d 308, 309

(2013). To the extent that the plaintiff’s claim involves

a question as to the proper interpretation of pleadings,

our review likewise is plenary. See Chase Home

Finance, LLC v. Scroggin, 178 Conn. App. 727, 743,

176 A.3d 1210 (2017) (‘‘Construction of pleadings is a

question of law. Our review of a trial court’s interpretation of the pleadings therefore is plenary.’’ [Internal

quotation marks omitted.]). ‘‘[W]here the legal conclu-
sions of the court are challenged, we must determine

whether they are legally and logically correct and

whether they find support in the facts . . . .’’ (Internal

quotation marks omitted.) American First Federal, Inc.

v. Gordon, 173 Conn. App. 573, 583, 164 A.3d 776, cert.

denied, 327 Conn. 909, 170 A.3d 681 (2017).

By statute, a ‘‘plaintiff may withdraw any action . . .

before the commencement of a hearing on the merits

thereof.’’ General Statutes § 52-80. Although the plaintiff’s ‘‘right . . . to withdraw his action before a hearing on the merits . . . is absolute and unconditional’’;

(emphasis added; internal quotation marks omitted)

Sicaras v. Hartford, 44 Conn. App. 771, 775–76, 692

A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340

(1997); such withdrawal in no way impairs the right of

the defendant to prosecute a previously filed counterclaim. See Practice Book § 10-55; see also Boothe v.

Armstrong, 80 Conn. 218, 224, 67 A. 484 (1907) (where

case involves causes of action both in favor of plaintiff

and in favor of defendant, plaintiff ‘‘has the right to

withdraw from the cognizance of the court his own

cause of action as stated in the complaint, and this is

the only effect that can be given to his attempt to withdraw the civil action’’ [emphasis added; internal quotation marks omitted]).

Consequently, a defendant with a pending counterclaim should not, in theory, need to move to have the

counterclaim restored to the docket following the withdrawal of the plaintiff’s action because the counterclaim

survives the withdrawal as a matter of law. If, however,

the counterclaim is not identified as such in the defendant’s answer, it may be erased from the docket along

with the plaintiff’s action. In such circumstances, the

court has the authority to grant a motion to restore the

case to the docket to permit the defendant to prosecute

the counterclaim because, where a defendant’s counterclaim is wrongfully stricken from the docket following

the withdrawal of the plaintiff’s action, the defendant

‘‘is entitled to have [the case] restored for the purpose

[of pursuing the defendant’s counterclaim].’’ (Emphasis

added.) Boothe v. Armstrong, 76 Conn. 530, 533, 57 A.

173 (1904). The court’s authority, however, necessarily

depends on the existence of an effective counterclaim.

Indeed, it would be anomalous to conclude that the

court has the authority to restore a counterclaim to the

docket where the defendant had not effectively pleaded

a counterclaim. Consequently, whether the court in the

present case had the authority to restore the defendant’s

third special defense to the docket depends on whether

the special defense was, in effect, a counterclaim.

Although a counterclaim is similar to a special

defense in that both are employed by a defendant to

diminish or defeat a plaintiff’s claim, they nonetheless

are separate and distinct types of pleadings. See Chief

Information Officer v. Computers Plus Center, Inc.,
310 Conn. 60, 94, 74 A.3d 1242 (2013) (counterclaim is

pleaded, in part, ‘‘to diminish, defeat or otherwise affect

a plaintiff’s claim’’ [internal quotation marks omitted]);

Valentine v. LaBow, 95 Conn. App. 436, 447 n.10, 897

A.2d 624 (special defense ‘‘is an attempt to plead facts

that are consistent with the allegations of the complaint

but demonstrate, nonetheless, that the plaintiff has no

cause of action’’ [internal quotation marks omitted]),

cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). The

heart of the distinction is that a counterclaim is an

independent cause of action, and a special defense is

not. See Historic District Commission v. Sciame, 152

Conn. App. 161, 176, 99 A.3d 207 (‘‘[a] counterclaim is

a cause of action . . . on which the defendant might

have secured affirmative relief had he sued the plaintiff

in a separate action’’ [internal quotation marks omitted]), cert. denied, 314 Conn. 933, 102 A.3d 84 (2014);

Valentine v. LaBow, supra, 447 n.10 (‘‘a special defense

is not an independent action’’). Rather, a special defense

is a purely defensive pleading that does not seek any

affirmative relief. See Bank of America, N.A. v. Aubut,

167 Conn. App. 347, 374, 143 A.3d 638 (2016) (‘‘a special

defense operates as a shield, to defeat a cause of action,

and not as a sword, to seek a judicial remedy for a

wrong’’). Thus, in determining whether a defendant’s

answer asserts a counterclaim as opposed to a special

defense, the court must determine whether the defendant could have maintained the claim as an independent

cause of action. Broadly defined, ‘‘[a] cause of action,

brought by means of a complaint or a counterclaim, is

a means of seeking redress for having suffered harm.

See, e.g., Black’s Law Dictionary (6th Ed. 1990) (defining ‘cause of action’ in part as ‘[t]he fact or facts which

give a person a right to judicial redress or relief against

another. . . . A situation or state of facts which would

entitle [a] party to sustain [an] action and give him

[the] right to seek a judicial remedy in his behalf.’).’’

(Emphasis added.) Bank of America, N.A. v. Aubut,

supra, 372. Consequently, this court has previously considered the existence of a prayer for relief in the defendant’s answer to be ‘‘of critical importance in construing

[the] answer as a counterclaim . . . .’’ 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138

Conn. App. 776, 802, 54 A.3d 232 (2012).

In the present case, the court, in deciding whether

the allegation in the defendant’s third special defense

constituted a counterclaim, made no determination as

to whether it asserted an independent cause of action.

Relying on 225 Associates v. Connecticut Housing

Finance Authority, supra, 65 Conn. App. 121, the court

instead focused its analysis on the question of whether

the defendant’s allegation arose out of the same transaction as that described in the plaintiff’s complaint. In

that case, this court stated that ‘‘[i]f the [defendant’s]

claim arises out of the same transaction described in

the complaint, it is characterized as a counterclaim.’’
Id., 121. This statement, however, was made in the context of explaining the distinction between a counterclaim and a setoff. Id. A claim of setoff is similar to a

counterclaim in that it ‘‘involve[s] the existence, in favor

of the defendant, of an independent cause of action

which he might pursue in a separate action.’’13 (Emphasis added.) Boothe v. Armstrong, supra, 76 Conn. 531–

32. The two types of claims differ only in that ‘‘[a]

counterclaim arises out of the same transaction

described in the complaint’’; Savings Bank of New London v. Santaniello, 130 Conn. 206, 210, 33 A.2d 126

(1943); whereas ‘‘[a] set-off is independent thereof.’’

Id. Thus, this court observed in 225 Associates that,

‘‘[t]raditionally, the distinction between a setoff and a

counterclaim centers around whether the claim arises

from the same transaction described in the complaint.’’

(Internal quotation marks omitted.) 225 Associates v.

Connecticut Housing Finance Authority, supra, 221.

In contrast, the issue in the present case requires us

to distinguish between a counterclaim and a special

defense. Consequently, the court’s reliance on the standard enunciated in 225 Associates was misplaced. Evaluating the defendant’s answer against the correct

standard, it is clear that the allegation in the defendant’s

third special defense cannot properly be construed as

a counterclaim.

The defendant’s third special defense consisted of a

single allegation: ‘‘The plaintiff did not properly account

for payments made by the defendant.’’ Nothing in this

allegation can reasonably be interpreted as a claim of

entitlement to affirmative relief. She neither explicitly

requested any judicial redress or relief nor alleged any

facts from which it could be inferred that she was entitled to such relief. Although pleadings must be construed ‘‘broadly and realistically, rather than narrowly

and technically’’; (internal quotation marks omitted)

Grenier v. Commissioner of Transportation, 306 Conn.

523, 536, 51 A.3d 367 (2012); this does not mean that

we may read into the defendant’s answer a prayer for

relief or factual allegations that simply are not there.

See Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684

(2004) (rule that courts should read pleadings broadly

and realistically ‘‘does not mean . . . that the trial

court is obligated to read into pleadings factual allegations that simply are not there or to substitute a cognizable legal theory that the facts, as pleaded, might

conceivably support for the noncognizable theory that

was actually pleaded’’); see also Grenier v. Commissioner of Transportation, supra, 536 (‘‘[o]ur reading of

pleadings in a manner that advances substantial justice

means that a pleading must be construed reasonably,

to contain all that it fairly means, but carries with it

the related proposition that it must not be contorted

in such a way so as to strain the bounds of rational

comprehension’’ [internal quotation marks omitted]).

Reading it broadly and realistically, the allegation that
the plaintiff did not properly account for the defendant’s

payments merely challenges the amount of the debt

owed to the plaintiff, which may be raised by way of

special defense or by objecting to the plaintiff’s

attempted introduction of the affidavit of debt in court.

Bank of America, N.A. v. Chainani, 174 Conn. App.

476, 486, 166 A.3d 670 (2017). In the absence of any

suggestion that she made payments in excess of the

amount of the debt, the defendant would not be entitled

to any affirmative relief under this allegation. Consequently, the defendant’s third special defense cannot

reasonably be construed as stating an independent

cause of action, and, therefore, the trial court erred in

construing it as a counterclaim. Because there was no

pending counterclaim as of the date of the withdrawal,

the court lacked the authority to restore the case to

the docket.

The judgment is reversed and the case is remanded

with direction to deny the motion to restore.

In this opinion the other judges concurred.

1 On October 17, 2013, subsequent to the commencement of the present

action, the plaintiff changed its name to Santander Bank. Although the

plaintiff’s filings subsequent to that date reflected that it now was known

as Santander Bank, it did not file a motion to substitute Santander Bank as

plaintiff, and, thus, the trial court file continues to identify the plaintiff as

Sovereign Bank. Therefore, we likewise identify the plaintiff as Sovereign

Bank.

2 The defendant did not file a brief in this appeal. Accordingly, on January

18, 2018, this court issued an order indicating that the appeal would be

considered solely on the basis of the plaintiff’s brief and the record as

defined by Practice Book § 60-4.

3

‘‘[F]or final judgment purposes, an order restoring a withdrawn case to

the docket is identical in all material respects to an order opening a final

judgment . . . .’’ Rosado v. Bridgeport Roman Catholic Diocesan Corp.,

276 Conn. 168, 195, 884 A.2d 981 (2005). ‘‘Ordinarily, the granting of a

motion to open a prior judgment is not a final judgment, and, therefore, not

immediately appealable. . . . Our Supreme Court, however, has carved out

an exception to that rule where a colorable claim is made that the trial

court lacked the power to open a judgment.’’ (Internal quotation marks

omitted.) Simmons v. Weiss, 176 Conn. App. 94, 98, 168 A.3d 617 (2017).

Thus, ‘‘an order restoring a case to the docket . . . [is likewise] immediately

appealable when that order is challenged on the basis of the court’s authority

to restore the case to the docket . . . .’’ (Emphasis omitted.) Rosado v.

Bridgeport Roman Catholic Diocesan Corp., supra, 197. In the present case,

the plaintiff’s principal claim, which is dispositive of its appeal, concerns

the authority of the trial court to restore the defendant’s special defense to

the docket. Accordingly, this court has subject matter jurisdiction to decide

the plaintiff’s appeal. See General Statutes § 52-263.

4 The plaintiff also claims on appeal that: (1) the trial court erred in

determining that the defendant had a vested right that was prejudiced by

the withdrawal of the plaintiff’s action and, therefore, abused its discretion

in restoring the case to the docket; and (2) no practical relief can be afforded

to the defendant by upholding the trial court’s decision to restore the case

for adjudication of her special defense because the defendant waived her

right to assert it by failing to do so in the federal foreclosure action subsequently brought by the plaintiff. Because the issue of the court’s authority

to restore the defendant’s special defense to the docket is dispositive, we

do not address the plaintiff’s other claims.

5 General Statutes § 52-80 provides in relevant part: ‘‘The plaintiff may

withdraw any action . . . returned to and entered in the docket of any

court, before the commencement of a hearing on the merits thereof. After

the commencement of a hearing on an issue of fact in any such action, the

plaintiff may withdraw such action, or any other party thereto may withdraw

any cross complaint or counterclaim filed therein by him, only by leave of
court for cause shown.’’

6 On September 26, 2016, the plaintiff filed a motion requesting that this

court take judicial notice and supplement the record. On December 6, 2017,

we granted the motion for the purpose of taking judicial notice of the file

and decisions rendered in the plaintiff’s federal foreclosure action against

the defendant in Santander Bank, N.A. v. Harrison, United States District

Court, Docket No. 3:15CV01730 (AVC) (D. Conn.).

7 Although the defendant had filed a four count counterclaim prior to the

withdrawal of the plaintiff’s action, the trial court ruled during an October

21, 2015 trial management conference that the counterclaim was ineffective

and ‘‘not part of this case’’ because the defendant had not filed it in conjunction with a request for leave to amend her answer. The defendant failed to

file such a request in the intervening month before the plaintiff withdrew

its action.

8 Because the defendant previously had filed a motion to restore on January 14, 2016, she titled her January 28, 2016 filing as a ‘‘revised’’ motion to

restore. Because only the revised motion is relevant to this appeal, for the

sake of simplicity, we refer to it as the defendant’s motion to restore.

9 Although the defendant suggested that the trial court could construe all

of her special defenses as counterclaims, her specific argument focused

solely on the third special defense.

10 Practice Book § 10-55 provides: ‘‘The withdrawal of an action after a

counterclaim, whether for legal or equitable relief, has been filed therein

shall not impair the right of the defendant to prosecute such counterclaim

as fully as if said action had not been withdrawn, provided that the defendant

shall, if required by the judicial authority, give bond to pay costs as in

civil actions.’’

11 In accordance with Practice Book § 64-1 (a), the trial court created a

memorandum of decision for use in this appeal by signing a transcript of

the portion of the proceedings in which it stated its oral decision and filing

it with the clerk of the trial court.

12 After the plaintiff filed this appeal, it filed a motion for articulation

requesting, inter alia, that the trial court clarify the basis for its determination

that the third special defense constituted a counterclaim and that it articulate

‘‘the basis for its determination that the court had jurisdiction to review the

[d]efendant’s special defenses when the matter had been withdrawn as of

right under . . . § 52-80 and a counterclaim had not been alleged in the

[d]efendant’s operable [a]nswer prior to the withdrawal.’’

13 More specifically, ‘‘[a] set-off is made where the defendant has a debt

against the plaintiff . . . and desires to avail himself of that debt, in the

existing suit, either to reduce the plaintiff’s recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for

a balance.’’ (Internal quotation marks omitted.) Mariculture Products Ltd.

v. Certain Underwriters at Lloyd’s of London, 84 Conn. App. 688, 703, 854

A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004).