MANUEL MOUTINHO, TRUSTEE v. 500 NORTH AVENUE, LLC, ET AL.; MANUEL MOUTINHO, TRUSTEE v. 1794 BARNUM AVENUE, INC., ET AL.; MANUEL MOUTINHO, TRUSTEE v. RED BUFF RITA, INC., ET AL.
(AC 36115)
Connecticut Appellate Court
Argued November 15, 2018—officially released August 6, 2019
Sheldon, Keller and Moll, Js.*
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Syllabus
The plaintiff M, as trustee, sought in four actions to foreclose mortgages on certain real properties owned by the defendants N Co., B. Co., and R. Co, and other lienholders and encumbrancers. The foreclosure actions were jointly tried to the trial court, which denied N Co.‘s oral motion to dismiss under the applicable rule of practice (§ 15-8) and rendered judgments of strict foreclosure. Subsequently, N. Co., the defendant in the first action, was substituted as the defendant in the other three actions in place of B. Co. and R. Co., because it had become the owner of the properties that were the subject of those actions. On appeal to this court, N Co. claimed, inter alia, that the trial court improperly failed to rule on its motion for a judgment of dismissal at the close of M‘s case-in-chief. Held:
- N Co.‘s claims that the trial court improperly denied its motion to dismiss under
Practice Book § 15-8 and concerning the timing of the court‘s ruling were not reviewable on appeal; in the context of the former motion for nonsuit for failure to make out a prima facie case, our Supreme Court has determined previously that the denial of such a motion is not reviewable on appeal, and although, on subsequent rare occasion, notably in cases where the question of reviewability was not raised, this court and our Supreme Court have reviewed the merits of appeals from the denial of motions under§ 15-8 for a judgment of dismissal for failure to make out a prima facie case, as an intermediate appellate court, this court was bound by Supreme Court precedent and was unable to modify it. - Although the trial court acted in an untimely manner when it ruled on N Co.‘s motion to dismiss after the close of evidence, as it should have been decided by the court before N Co. produced evidence, any error in the timing of the court‘s decision on the motion to dismiss was harmless; in rendering judgment in favor of M in each of the actions, the court concluded, at a time when it was permitted to weigh credibility and make findings of fact, that M sustained his burden of proof, which was supported by evidence presented during M‘s case-in-chief, and N Co. did not challenge the court‘s factual findings, nor did it cite to any finding of the court that could only have been made on the basis of evidence presented in N Co.‘s case-in-chief.
- N Co. could not prevail on its claim that the trial court improperly denied its motion to dismiss, which was based on its claim that the plaintiff‘s failure to include certain allegations in the operative complaints, namely, that the original mortgagors, as the owners of the equity of redemption, were the title owners of the respective properties at the time the mortgages were executed, resulted in a material variance between the pleadings and the evidence presented and caused the plaintiff to fall short of pleading and proving a prima facie case in each of the actions: this court declined to address N Co.‘s arguments that M‘s operative complaints were legally insufficient, as N Co., instead of moving to strike the plaintiff‘s complaints in the various actions on the basis of the purported absence of a material allegation, waited until the close of the plaintiff‘s case to challenge the sufficiency of the plaintiff‘s operative pleadings by way of its motion under
Practice Book § 15-8 to dismiss for failure to make out a prima facie case, which was a procedurally improper use of§ 15-8 , and because N Co. did not claim that it was unfairly surprised or prejudiced by a defect in the plaintiff‘s operative complaints, it waived its claim on appeal challenging the legal sufficiency thereof; moreover, to the extent that N Co.‘s claim challenged the sufficiency of M‘s evidence relating to the ownership of the respective properties at the time the mortgages were executed, this court found no error, as a review of the record revealed that at trial, the notes, mortgage deeds, and guarantees pertaining to the subject properties were offered into evidence by M, without objection, as part of his case-in-chief and were admitted as full exhibits, and the mortgage deeds themselves identified the named defendants as the grantors of the properties at issue. - N Co. could not prevail on its claim that the trial court improperly denied, without cause, its right to make closing arguments or to file posttrial briefs in lieu of closing arguments under the applicable rule of practice (
§ 15-5 [a] ): the record reflected that N Co.‘s counsel did not request to make a closing argument at the close of evidence, there was no indication that the court expressed any refusal to permit closing arguments, and, in the absence of any statement from N Co.‘s counsel to the court indicating that he wanted to make a closing argument, N Co. waived its claim concerning closing argument; moreover, N Co.‘s claim that the court erred in refusing to permit the parties to submit posttrial briefs in violation of§ 15-5 (a) was unavailing, as§ 15-5 (a) is silent as to posttrial briefs and creates no independent obligation on the part of the court to permit their submission, the record reflects that N Co.‘s counsel requested the court‘s permission to file posttrial briefs only with respect to one of the foreclosure actions, the appeal as to which was previously withdrawn, and, accordingly, N Co.‘s contention was rendered moot as to that action and was deemed waived as to the four actions pending on appeal.
Procedural History
Actions to foreclose mortgages on certain real properties, and for other relief, brought to the Superior Court in the judicial district of Waterbury, Complex Litigation Docket, where the foreclosure claims were jointly tried to the court, Shaban, J.; thereafter, the court, Shaban, J., denied the motion to dismiss filed by the defendant 500 North Avenue, LLC, and rendered judgments of strict foreclosure; subsequently, the defendant 500 North Avenue, LLC, was substituted as a defendant in the second, third, and fourth actions, and the defendant 500 North Avenue, LLC appealed to this court. Affirmed.
James M. Nugent, with whom, on the brief, was James R. Winkel, for the appellee (plaintiff).
Opinion
The following procedural history and facts, as found by the trial court, are relevant to the defendant‘s claims. The original mortgagors, namely, the defendant, 3044 Main, LLC, 1794 Barnum Avenue, Inc., Red Buff Rita, Inc., 2060 East Main Street, Inc., Anthony Estates Developers, LLC, and D.A. Black, Inc. (original mortgagors), executed, respectively, promissory notes and mortgages securing those notes, pertaining to certain parcels of commercial real property located in Bridgeport, Milford, and Stratford. Gus Curcio, Sr., executed corresponding personal guarantees. The plaintiff is the owner and holder of the notes, mortgages, and guarantees. At various points in time, the original mortgagors stopped making payments on their respective notes. Consequently, during the period of 2009 to 2011, the plaintiff commenced eight foreclosure actions, asserting foreclosure claims against the original mortgagors and other lienholders and encumbrancers, as well as breach of guarantee claims against Curcio.
In April and May, 2013, the actions were tried together on the plaintiff‘s foreclosure claims only.5 On May 1, 2013, after the plaintiff had rested his case, counsel for the defendant orally moved, among other things, for a judgment of dismissal on each of the plaintiff‘s foreclosure claims pursuant to
On July 3, 2013, the court issued eight separate memo-randa of decision rendering a judgment of strict foreclosure in favor of the plaintiff in each action. On September 18, 2013, this joint appeal followed, and a lengthy period of motions practice ensued thereafter.6 On May 17, 2018, the appeal was withdrawn as to four of the eight actions, namely, 3044 Main, 2060 East Main Street, Anthony Estates, and D.A. Black, leaving four actions pending on appeal, as follows: (1) 500 North Avenue, LLC; (2) 1794 Barnum Avenue I; (3) 1794 Barnum Avenue II; and (4) Red Buff Rita. See footnote 2 of this opinion. We now address the defendant‘s claims with respect to those four actions. Additional facts and procedural history will be provided as necessary.
I
The defendant‘s first two claims on appeal relate to its
By way of additional background, we note that neither party raised the question of whether a trial court‘s denial of a motion for a judgment of dismissal pursuant to
In the context of the former motion for nonsuit for failure to make out a prima facie case, our Supreme Court repeatedly has held, in a body of century-old cases, that the denial of such a motion is not reviewable on appeal. For example, in Bennett v. Agricultural Ins. Co., supra, 51 Conn. 512, in an appeal following a jury trial, the court held that “[t]he refusal of the court to grant the motion for nonsuit, being [a] matter committed to the discretion of the court, is not reviewable on application of the defendant. The practice in Connecticut, unlike that of some other states, is regulated by statute. [
We acknowledge that on subsequent, rare occasion—notably, in cases where the question of reviewability was not raised—our Supreme Court, as well as this court, have reviewed the merits of appeals from the denial of
In the present case, on the basis of the foregoing, we conclude that the court‘s denial of the defendant‘s
II
Notwithstanding the foregoing conclusion, which is not a subject matter jurisdictional bar to the discussion that follows, we offer an alternative analysis, addressing the merits of the defendant‘s claims relating to its
We return to the language of
For purposes of the present appeal, we focus our attention on our Supreme Court‘s pronouncement in Cormier that “[a] motion for judgment of dismissal must be made by the defendant and decided by the court after the plaintiff has rested his case, but before the defendant produces evidence.” (Emphasis added.) Cormier v. Fugere, supra, 185 Conn. 2. This precise language was most recently cited approvingly by the Supreme Court in Machado v. Taylor, 326 Conn. 396, 402, 163 A.3d 558 (2017).8 Despite the absence of any citation to Cormier in the parties’ respective appellate briefs, and notwithstanding the parties’ advocating that this court should engage in an original interpretation of
Accordingly, applying the principle set forth in Cormier v. Fugere, supra, 185 Conn. 2, namely, that “[a] motion for judgment of dismissal must be . . . decided by the court . . . before the defendant produces evidence,” we conclude, as an initial matter, that the court acted in an untimely manner when it ruled on the defendant‘s motion to dismiss after the close of evidence. We nonetheless conclude, however, that any error in the timing of the rendering of the court‘s decision on the motion to dismiss was harmless.
“The standard for determining whether the plaintiff has made out a prima facie case, under
Here, in ultimately rendering judgment in favor of the plaintiff in each of the actions, the court concluded, at a time when it was permitted to weigh credibility and make findings of fact, that the plaintiff in fact sustained his burden of proof, which is supported by evidence presented during the plaintiff‘s case-in-chief. Notably, the defendant does not challenge any of the court‘s factual findings, nor does it cite to any finding of the trial court that could only have been made on the basis of evidence
III
The defendant also claims, as a substantive matter, that the court erred when it denied its motion to dismiss made pursuant to
As a threshold matter, we decline to address the defendant‘s arguments concerning the legal sufficiency of the plaintiff‘s operative complaints at this late stage of the proceedings. “[A] judgment ordinarily cures pleading defects . . . . The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike . . . is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. [I]f parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect.” (Internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 636, 698 A.2d 258 (1997).
Our Supreme Court‘s analysis in Service Road Corp. v. Quinn, supra, 241 Conn. 630, is particularly instructive. In that case, “[i]nstead of submitting a motion to strike the plaintiffs’ amended complaint, the defendants waited until the close of the plaintiffs’ evidence and then moved, pursuant to Practice Book [1978–97] § 302 [the predecessor to
The same analysis applies here. Instead of moving to strike the plaintiff‘s complaints in the various actions on the basis of the purported absence of a material allegation, the defendant waited until the close of the plaintiff‘s case to challenge the sufficiency of the plaintiff‘s operative pleadings by way of its
Moreover, to the extent that the defendant‘s claim challenges the sufficiency of the plaintiff‘s evidence relating to the ownership of the respective properties at the time the mortgages were executed, we find no error. Our review of the record reveals that at trial, the notes, mortgage deeds, and guarantees pertaining to the subject properties were offered into evidence by the plaintiff, without objection, as part of his case-in-chief and were admitted as full exhibits. The mortgage deeds themselves identify the named defendants as the grantors of the properties at issue, and each deed provides, in relevant part, that the grantor “is well seized of the premises . . . .”
On the basis of the foregoing, we conclude that the court properly denied the defendant‘s motion to dismiss.
IV
The defendant makes the final claim that the court erred when it denied, without cause, its right (1) to make closing arguments or (2) to file posttrial briefs in lieu of closing arguments pursuant to
The following standard of review and legal principles are applicable to the defendant‘s claim. “The interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation. . . . The interpretation and application of a statute, and thus a Practice Book provision, involves a question of law over which our review is plenary. . . . In seeking to determine [the] meaning [of a statute or rule of practice, we] . . . first . . . consider the text of the statute [or rule] itself and its relationship to other statutes [or rules]. . . . If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence . . . shall not be considered. . . . When [the provision] is not plain and unambiguous, we also look for interpretive guidance to the . . . history and circumstances surrounding its enactment, to the . . . policy it was designed to implement, and to its relationship to existing [provisions] and common law principles governing the same general subject matter . . . . We recognize
We begin our analysis of the defendant‘s claim by turning to the text of
The defendant first contends that the court erred in refusing to permit closing arguments. We reject this contention because the record reflects that the defendant‘s counsel did not request to make a closing argument at the close of evidence, and there is no indication that the court otherwise expressed any refusal to permit closing arguments. While
The defendant next contends that the court erred in refusing to permit the parties to submit posttrial briefs in violation of
The judgments are affirmed, and the cases are remanded for the purpose of setting new law days.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of the date of oral argument.
Notes
On May 17, 2018, the appeal was withdrawn as to 3044 Main, 2060 East Main Street, Anthony Estates, and D.A. Black. With regard to the four actions that remain pending on appeal, the defendant was the original named defendant in 500 North Avenue and was substituted as a party defendant for the named defendants in 1794 Barnum Avenue I, 1794 Barnum Avenue II, and Red Buff Rita.
“The Court: I‘ll be issuing a memorandum of decision on each of these files and I am not going to require any briefs from any of the parties. I don‘t believe they‘re necessary in this case. . . .
“And at this point then, hopefully I‘ve addressed I think those things that I need to address relative to issuing a decision in the case. Is there anything that I‘ve overlooked from any angle as a procedural matter? . . .
“[The Defendant‘s Counsel]: Your Honor, with regards to Anthony Estates, Your Honor, I respectfully request the right to do briefs, Your Honor. There‘s the bankruptcy issues [that] were raised, evidence is in the court and I think bankruptcy law is essential to be looked at for the court to measure the testimony of the witnesses and the exhibits that are before the court. I don‘t think it‘s possible to do without them.
“The Court: All right. Anybody else want to be heard on that request?
“[The Plaintiff‘s Counsel]: Yes, Your Honor. I would object to that request. I think the facts are very strong one way and need no interpretation on any complex issue. It‘s a matter of contract.
“The Court: All right. I agree. I don‘t know that—And I understand, with all due respect, your request for briefs, Mr. Bryk [the defendant‘s counsel]. I don‘t think that they‘re necessary in this case, so I will not require any briefs from any of the parties.”
The record further demonstrates that, just prior to adjournment, the court posed one final inquiry to all counsel, asking whether there were any other matters for the court to address, and the defendant‘s counsel responded in the negative.