Opinion
No. CV03-0824105
September 9, 2005
MEMORANDUM OF DECISION
The plaintiff law firm, O'Connell, Flaherty Atmore, brings this action against the defendants, Andrew, Anna and Steven Pollansky, for alleged breach of contract to pay legal fees and unjust enrichment. An application for a prejudgment remedy was filed with a proposed complaint on March 19, 2003. The plaintiff filed its complaint on July 20, 2003. The defendants filed an answer, special defenses and counterclaims on July 30, 2003. The plaintiff filed a reply to the defendants' special defenses, an answer and special defenses to the defendants' counterclaims, as well as a certificate of closed pleadings on September 24, 2003. The certificate of closed pleadings was inaccurate, as the defendants never filed a reply to the plaintiff's special defenses to the defendants' counterclaims. On July 6, 2005, the defendant, Steven Pollansky, claimed this matter to the jury list. On July 14, the plaintiff filed a motion to strike the defendant's claim, arguing that it was untimely. The defendant filed an objection to the motion to strike.
Practice Book § 14-10 requires, in relevant part, that "[a]ll claims of cases for the jury shall be made in writing, served on all other parties and filed with the clerk within the time allowed by General Statutes § 52-215. That statute provides, in relevant part: "When . . . an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk; and any such case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court." General Statutes § 51-239b further provides that "[I]n civil actions, a jury shall be deemed waived unless requested by either party in accordance with the provisions of section 52-215."
In Bradley v. Randall, 63 Conn.App. 92, 95, 772 A.2d 722 (2001), it was held that a trial court, in ruling on a motion to strike a jury claim, should articulate the reasons for its decision. That decision dealt with the authority to permit a claim for a jury trial if new issues are introduced by amended pleadings. This case doesn't involve a recently amended pleading. However, new issues of fact were introduced by the plaintiff on September 24, 2003 when, along with its answer to the defendants' counterclaims, the plaintiff asserted four special defenses alleging legal insufficiency, failure to mitigate damages, privilege and the effect of the defendant's breach of the retainer agreement on the plaintiff's duty to honor remaining provisions of the contract.
Our rules require that the defendants reply to the special defenses to the alleged by the plaintiff as to their counterclaims. Practice Book § 10-57 states, in pertinent part, "Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply." The allegations contained in the plaintiff's special defenses to the counterclaims are in the nature of matter in avoidance in that they introduce other facts inconsistent to those pleaded in the counterclaims in order to avoid them. See Home Oil Co. v. Todd, 195 Conn. 333, 342, 487 A.2d 1095 (1985). If a new issue of fact is introduced which requires a responsive pleading, the ten-day period within which the parties may elect a jury trial begins to run from the time that the responsive pleading is filed and the issues are again joined. Javit v. Marshall's, Inc., 40 Conn.App. 261, 266, 670 A.2d 886, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996). Practice Book § 10-54 provides that a counterclaim "shall be pleaded and replied to according to the rules governing complaints and answers." The defendants, as plaintiffs on the counterclaims, must be permitted to reply to the special defenses of the plaintiff as defendant on the counterclaims.
"Where responsive pleading is required . . . the issue is joined when the responsive pleading is filed." 2 Stephenson, Conn. Civ. Proc. (2d Ed. 1971) § 173. Since the defendants have yet to file a reply, the issues have not yet been joined, and the time for the defendants to file a claim for the jury list has not expired.
The defendant, Steven Pollansky, filed his jury trial claim at a point in time when no viable ten-day period under § 52-215 was running. It has been recognized that a "premature" jury trial request remains in the file until the issues of fact are joined. The claim, never having been withdrawn, is a continuing authority to the clerk to place the case on the jury docket when the pleadings are closed and all issues are joined. Amercoat Corporation v. Transamerica Ins. Co., 165 Conn. 729, 732, 345 A.2d 30 (1974), cert. denied sub nom. Pfotzer v. Amercoat Corporation, 431 U.S. 967, 97 S.Ct. 2926, 53 L.Ed.2d 1063 (1977); Home Oil Co. v. Todd, 195 Conn. 333, 343, 487 A.2d 1095 (1985).
For the foregoing reasons, the plaintiff's motion to strike the jury claim of the defendant, Steven Pollansky, is denied.
KELLER, J.