Milford Redevelopment & Housing Partnership v. Glicklin, 228 Conn. App. 593 (2024)

Citation: Milford Redevelopment & Housing Partnership v. Glicklin, 228 Conn. App. 593 (2024)
Parent Document: Milford Redevelopment & Housing Partnership v. Glicklin, 228 Conn. App. 593 (2024)
Jurisdiction: Connecticut (state)
Effective Date: 2024-10-15
Original Source: https://www.courtlistener.com/opinion/10136084/milford-redevelopment-housing-... ↗

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Having determined that the defendant did not plead
       the special defense of cure, we must next determine
       whether the court improperly rendered judgment on
       that basis. The court correctly acknowledged in its
       memorandum of decision that ‘‘[t]he defendant did not
       proactively claim that she did not further violate the
       policy, only that she was trying to quit smoking and
       attempting to comply with the policy.’’ The court never-
       theless determined that the evidence before it ‘‘only
       establishes an initial violation of the policy but does
       not establish any violations after the pretermination
       notice.’’ Accordingly, the court improperly relied on
       an unpleaded special defense as a basis for rendering
       judgment in the defendant’s favor. See Howard-Arnold,
       Inc. v. T.N.T. Realty, Inc., 145 Conn. App. 696, 712, 77
       A.3d 165 (2013) (‘‘it is improper for a court, sua sponte,
       to apply an unpleaded special defense to defeat a plain-
       tiff’s cause of action’’), aff’d, 315 Conn. 596, 109 A.3d
       473 (2015); Oakland Heights Mobile Park, Inc. v.
       Simon, supra, 36 Conn. App. 436–37 (allowing evidence
       of unpleaded special defense ‘‘result[s] in ‘trial by
       ambuscade’ to the detriment of the opposing party’’).
         We, therefore, conclude that, because the defendant
       did not plead as a special defense that she cured the
       violation, the court improperly considered it as a basis
       for rendering judgment in the defendant’s favor.
                                       B
         The plaintiff next claims that the court applied an
       incorrect legal standard to find that the plaintiff did not
       prove that the defendant had not cured her violation of
       the no-smoking policy. Specifically, the plaintiff argues
       that ‘‘[t]he trial court . . . was not empowered to
       excuse [the] defendant from raising any special defense
       available to her or from attempting to credibly prove
       such defense at trial. In doing so [the court] erroneously
       placed the burden on the plaintiff to prove otherwise.’’
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