229 Conn. 634 | Conn. | 1994
This appeal and cross appeal from a judgment of foreclosure requires us to decide whether the trial court properly: (1) imposed sanctions against the defendants Joan C. Ursini and Plymouth Commons Realty Corporation (Plymouth Realty) because their codefendant, Louis M. Ursini,
The facts may be summarized as follows. On February 21, 1990, the plaintiff, Northeast Sayings, F.A., initiated a foreclosure action against Louis Ursini, Joan Ursini and Plymouth Realty, alleging that Plymouth Realty had defaulted on a $1,000,000 note guaranteed
The plaintiff thereafter filed a motion for default, sanctions and judgment of dismissal of the defendants’ counterclaim (motion for sanctions), alleging that Louis Ursini, while under oath at his deposition on July 9, 1991, had refused to answer certain of the plaintiff’s questions and had responded to other questions in a
I
The defendants Joan Ursini and Plymouth Realty claim that the trial court improperly rendered a judgment of default and nonsuit against them for Louis Ursini’s refusal to respond to questions posed to him at his deposition by the plaintiff’s counsel.
The trial court, however, made no finding as to whether Louis Ursini’s deposition conduct was properly attributable to Joan Ursini and Plymouth Realty. Rather, the court concluded that the imposition of a default and nonsuit against Joan Ursini and Plymouth Realty was the only way to vindicate the plaintiff’s right to depose Louis Ursini in preparation of its defense to the claims raised by Joan Ursini and Plymouth Realty. We disagree. The fact that Louis Ursini might be called as a trial witness by Joan Ursini and Plymouth Realty is not alone a sufficient reason to impute to them the deposition conduct of Louis Ursini. In the absence of a determination by the trial court, supported by the evidence, that the conduct of Louis Ursini was attributable to Joan Ursini and Plymouth Realty, the imposition of sanctions against Joan Ursini and Plymouth Realty for Louis Ursini’s conduct was improper.
The plaintiff contends that the trial court acted within its discretion in entering a default and nonsuit against both Joan Ursini and Plymouth Realty because Louis Ursini was Joan Ursini’s husband and the president of Plymouth Realty. The trial court, however, made no finding that Louis Ursini was married to Joan Ursini or that he was the president of Plymouth Realty, and there is insufficient evidence in the record of the hearings on the plaintiff’s motion for sanctions to support such a conclusion.
Accordingly, we conclude that the case must be remanded for an evidentiary hearing so that the trial court may determine whether Louis Ursini’s conduct at his deposition was properly attributable to Joan Ursini and Plymouth Realty. If the trial court so finds, the court must then determine what sanctions, if any, should be imposed against Joan Ursini and Plymouth Realty.
II
The plaintiff claims that the trial court improperly denied its motion to strike the jury claim.
The trial court, on application of these principles, determined that the defendants’ counterclaim is essentially legal in nature and, therefore, gives rise to a right to a jury trial.
In this opinion the other justices concurred.
Louis M. Ursini has not appealed from the judgment of default and non-suit and is not, therefore, a party to this appeal. The following defendants were also defaulted and are not parties to this appeal: Shared Development Limited Partnership; Linda J. Albert; Chin Ki Cheng; Denise Sturgeon; EWR, Inc.; Chun Kun Lee; Charles Kapros; George Kapros; Chris Sullivan; Timothy Sullivan; Thomas J. Makara; David Smith; and Pauline Demora. Hereinafter, we will refer to Plymouth Realty, Joan Ursini and Louis Ursini as the defendants.
Practice Book § 308 provides: “cases presenting both legal and EQUITABLE ISSUES
“A case presenting issues both in equity and law may be claimed for the jury list, but, unless the court otherwise orders, only the issues at law shall be assigned for trial by the jury. Whenever such an action has been placed upon the docket as a jury case, no determination of the equitable issues raised by the pleadings shall prevent a jury trial of the claim for damages, unless both parties agree in writing to waive a jury, or unless the determination of the equitable issues has necessarily adjudicated all the facts upon which the claim for damages rests.”
Neither Joan Ursini nor Plymouth Realty challenge the trial court’s finding that Louis Ursini had failed to respond to the plaintiff’s questions at his deposition.
On October 5,1992, the trial court, Maloney, J., issued an articulation of his order of default and nonsuit against the defendants.
Plymouth Realty and Joan Ursini appealed and the plaintiff cross appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal and cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
The plaintiff argues that Joan Ursini and Plymouth Realty did not properly raise this claim before the trial court and, therefore, that they should not be permitted to seek review of this issue on appeal. The plaintiff did not, however, specifically allege that Louis Ursini’s deposition conduct was attributable to Joan Ursini and Plymouth Realty until the January 27,1992 hearing on Louis Ursini’s motion to vacate the sanctions imposed against him. The defendants immediately requested the opportunity to brief the
The plaintiff concedes that the only suggestion in the record that Louis Ursini was married to Joan Ursini is the sheriffs return of service of the summons and complaint, which notes that Louis Ursini and Joan Ursini had been served at the same address. Similarly, the only indication that Louis Ursini was the president of Plymouth Realty consists of the sheriff’s return, which states that Louis Ursini had been served in his individual
The plaintiff claims that we may affirm the decision of the trial court on the alternate ground that each of the defendants’ six special defenses is deficient as a matter of law. Although the plaintiff filed a motion to strike three of the defendants’ special defenses, the plaintiff did not challenge the legal sufficiency of the remaining special defenses in the trial court. We therefore do not address the plaintiff’s claim. Practice Book § 4185; see Passamano v. Passamano, 228 Conn. 85, 90-91 n.8, 634 A.2d 891 (1993).
The plaintiff raises this issue pursuant to Practice Book § 4013 (a) (1) (B), which provides that any appellee may present for review adverse rulings
The plaintiff relies on dictum in Savings Bank of New London v. Santaniello, 130 Conn. 206, 211, 33 A.2d 126 (1943), for the proposition that the defendants, by raising their legal claims as a counterclaim in the plaintiff’s equitable action rather than filing a separate suit, have waived their right to a jury trial. To the extent that our dictum in Savings Bank of New London is inconsistent with the principles set forth in our subsequent cases; see, e.g., Texaco, Inc. v. Golart, supra, 206 Conn. 458-59; United States Trust Co. v. Bohart, supra, 197 Conn. 44-45; we decline to follow it.
Of course, the defendants are entitled to a jury trial only on their legal counterclaim and not on the foreclosure action. In the event of a new trial, therefore, the trial court must determine whether to conduct the trial of the legal and equitable claims jointly or separately. We note that as a general matter, a joint trial of the legal and equitable claims will often serve the interest of judicial economy. That interest, however, must be weighed
Because we vacate the judgment of default entered against Joan Ursini and Plymouth Realty, we do not address the issues raised by the plaintiff on its cross appeal concerning the trial court’s rulings on the plaintiff’s motion for judgment of strict foreclosure.