191 Conn.App. 608
Conn. App. Ct.2019Background
- Plaintiff Manuel Moutinho, as trustee, sued to foreclose mortgages on multiple commercial properties; eight foreclosures were tried jointly and four remain on appeal (including 500 North Avenue, LLC).
- After plaintiff rested, defendant 500 North Avenue orally moved for judgment of dismissal under Practice Book §15-8 (failure to make out a prima facie case); the court reserved decision, heard defendant’s evidence, then denied the motion after all evidence closed and later entered judgments of strict foreclosure.
- Defendant appealed, arguing (1) the court failed to rule on the §15-8 motion at the close of plaintiff’s case, (2) denial of the §15-8 motion was erroneous (including alleged pleading variances), and (3) the court denied the defendant the opportunity for closing argument or to file posttrial briefs under Practice Book §15-5(a).
- The trial court’s factual findings supported that plaintiff produced notes, mortgage deeds, and guaranties identifying named defendants as grantors; those documents were admitted without objection during plaintiff’s case-in-chief.
- The Appellate Court concluded (a) under controlling Supreme Court precedent the denial and timing of a §15-8 motion are not appealable (century-old nonsuit precedent), (b) even on the merits any untimely ruling was harmless because the court as factfinder credited plaintiff’s evidence, and (c) defendant waived challenges to pleadings and waived/forfeited closing-argument and posttrial-brief claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial/timing of §15-8 motion is reviewable | Moutinho: Supreme Court precedent bars review; judgment should stand | 500 N. Ave.: Court erred by not ruling at close of plaintiff’s case and by denying §15-8 motion | Denial/timing not reviewable under binding precedent; alternative merits analysis finds any timing error harmless |
| Whether court erred in denying §15-8 (prima facie) | Plaintiff: Presented sufficient evidence (notes, mortgage deeds, guaranties) to make prima facie case | Defendant: Complaints omitted allegation that original mortgagors were title owners when mortgages were executed, creating material variance | Defendant waived pleading attack by not moving to strike; evidence in plaintiff’s case (deeds showing grantors) supported prima facie case; denial proper |
| Whether defendant was denied right to make closing argument | Plaintiff: No denial; defendant never requested closing argument | Defendant: Court denied closing arguments and/or posttrial briefs | Waived: defendant’s counsel did not request argument; §15-5(a) allows briefs for cause but does not require court to accept posttrial briefs; claim moot/waived for withdrawn actions |
| Whether posttrial briefs were required by rule | Plaintiff: §15-5(a) silent on posttrial briefs; court acted within discretion | Defendant: Entitled to file posttrial briefs in lieu of oral closing arguments | No error: rule does not mandate posttrial briefs; request was limited to a withdrawn action and otherwise waived |
Key Cases Cited
- Bennett v. Agricultural Ins. Co., 51 Conn. 504 (century-old holding that refusal to grant nonsuit is not reviewable)
- Rice v. Foley, 98 Conn. 372 (refusal to grant nonsuit not appealable)
- Cormier v. Fugere, 185 Conn. 1 (motion for judgment of dismissal must be decided after plaintiff rests but before defendant presents evidence)
- Machado v. Taylor, 326 Conn. 396 (cited Cormier approvingly regarding timing of §15-8 motions)
- Service Road Corp. v. Quinn, 241 Conn. 630 (waiver of pleading defects when moving only under §15-8 and not striking complaint)
- Jackson v. Water Pollution Control Authority, 278 Conn. 692 (practice note re: motion for judgment of dismissal replacing nonsuit)
- Berchtold v. Maggi, 191 Conn. 266 (trier of fact may disbelieve uncontradicted evidence when making final findings)