Niki Whitehead v. East Haven Zoning Board (2014)

MEMORANDUM OF DECISION AND ORDERS OF COURT RE MOTION FOR NONSUIT, MOTION TO STRIKE, SCHEDULING ORDER

As the court will discuss, it is the order of the court that the plaintiff file a denial of the special defense within 10 days of March 14, 2014.   This order precludes the filing of a motion to strike the special defense and requires the court to issue a scheduling order for the filing of briefs in this matter.   The court will address these matters and first notes that a court is not required to grant a motion for nonsuit because pleadings are not filed in accordance with the time requirements of the Practice Book. The court concludes that granting a motion for nonsuit under the circumstances of this case would be too harsh a remedy.   It does not believe Ms. Whitehead was intentionally dilatory seeking delay for the purpose of delay;  she appears to have been honestly confused about the procedural steps she had to take to preserve her rights.   But the defendant has rights too as the plaintiff recognizes.   The amended special defense was filed on January 7, 2014 and no motion to strike or denial was filed as of March 3, 2014, the date of the hearing on the motion for nonsuit.   The plaintiff forfeits nothing by addressing the lack of legal sufficiency of the special defense in her brief on the merits of this case.   The defendant concedes she would have this right.   The burden of course is on the defendant in any case to establish the viability of the special defense.

Land Use cases, such as this, are sui generis.   The judge hearing the matter on the merits and the parties are confined to the record;  there has been no motion to supplement the record.   Thus the plaintiff cannot take the position that a motion to strike is necessary to forestall the necessity of conducting a factual investigation or deposition or interrogatory practice.   In any event it is too late to wait until the hearing on a motion for nonsuit for failure to comply with Practice Book rules on the order and time of pleading to speculate on the desirability of filing a motion to strike.

The court, however, will extend the time for the plaintiff's filing of her brief so she can fully address the issues raised by the special defense along with her argument on the general merits of the case.   The court's orders are as follows:

(1) The motion for nonsuit is denied.

(2) The plaintiff must file a denial of the special defense within ten days of March 14, 2014 which precludes her filing of a motion to strike the special defense.

(3) The court orders the plaintiff to file her brief with 45 days of March 14, 2014 although it usually only allows 30 days.   The defendant must file its responsive brief including, of course, its arguments to support the special defense within 45 days of receiving the plaintiff's brief.

When both briefs have been filed the matter will be assigned for a hearing.

Thomas J. Corradino

Judge Trial Referee

Corradino, Thomas J., J.T.R.