Chase Home Finance, LLC v. Scroggin ( 2019 )

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CHASE HOME FINANCE, LLC v. DANIEL J.
SCROGGIN
(AC 41929)
Keller, Moll and Bishop, Js.
Syllabus
The plaintiff, C Co., sought to foreclose a mortgage on certain real property
owned by the defendant, S, who was defaulted for failure to plead.
Thereafter, the trial court granted the motion filed by the substitute
plaintiff, A Co., for a judgment of strict foreclosure and rendered judg-
ment thereon, from which S appealed to this court, which reversed in
part the trial court’s judgment and remanded the case to that court for
further proceedings. Following the remand, A Co. filed a motion for
summary judgment as to liability only on count one of its operative, six
count amended complaint. Subsequently, S filed a motion for an exten-
sion of time to respond to A Co.’s motion for summary judgment, which
the court denied as untimely. The parties appeared before the court at
short calendar on A Co.’s motion for summary judgment, which had
been marked ready. The court granted A Co.’s motion for summary
judgment, absent opposition. S’s counsel then stated that, pursuant to
statute (§ 51-183c), the court was required to recuse itself. The court
responded by asking whether S’s counsel had filed a motion to recuse,
to which he indicated that he had not, and the short calendar proceeding
concluded. Subsequently, A Co. filed a motion for a judgment of strict
foreclosure, which the trial court granted and rendered judgment
thereon, from which S appealed to this court. Held:
1. S could not prevail on his claim that, pursuant to § 51-183c, the trial
court judge should have recused herself from ruling on material issues
following this court’s reversal of the judgment of strict foreclosure, as
§ 51-183c did not apply because there was no trial within the meaning
of the statute; our appellate courts have repeatedly concluded that § 51-
183c does not require recusal where the adversarial proceeding at issue
did not constitute a trial, and, thus, § 51-183c did not apply in the present
case so as to require the recusal of the trial judge following the reversal
of the judgment of strict foreclosure because that judge had not presided
over any trial, as the judgment of strict foreclosure was rendered in
the context of a short calendar proceeding, to which § 51-183c does
not apply.
2. The trial court erred by granting A Co.’s motion for summary judgment
without hearing oral argument on that motion pursuant to the applicable
rule of practice (§ 11-18): the opportunity for oral argument required
by § 11-18 (a) was not provided during the short calendar proceeding,
as the trial court, upon confirming that S had not filed a written response
to A Co.’s motion for summary judgment, did not inquire as to whether
S’s counsel wanted to be heard to argue whether A Co. had met its
initial burden, but, instead, the court immediately granted the motion
absent opposition; moreover, although A Co. claimed that S did not
comply with the procedural requirements of § 11-18 (a) (2) because he
failed to file a written notice seeking oral argument, the two conditions
for oral argument being a matter of right for motions for summary
judgment contained in § 11-18 (a) are disjunctive, and S satisfied the
condition contained in § 11-18 (a) (1), as A Co.’s motion for summary
judgment had been marked ready; furthermore, although A Co. claimed
that S waived oral argument as to its motion for summary judgment
under § 11-18 (d), which provides that the ‘‘[f]ailure to appear and present
argument on the date set by the judicial authority shall constitute a
waiver of the right to argue unless the judicial authority orders other-
wise,’’ that claim failed because not only did S’s counsel appear for oral
argument, but the trial court ruled on the motion before either party
could argue the merits of the motion, and because S had a right to oral
argument, which was not waived, with respect to A Co.’s motion for
summary judgment, the court improperly adjudicated that motion with-
out permitting oral argument on the merits.
3. S’s claim that the trial court abused its discretion in denying on timeliness
grounds his motion for an extension of time to respond to A Co.’s motion
for summary judgment was unavailing: the forty-five day period set forth
in the applicable rule of practice (§ 17-45 [b]) for the filing of a response
to A Co.’s motion for summary judgment passed without S filing a
response or a motion for an extension of time, and although S claimed
that the trial court abused its discretion by denying his motion for an
extension of time as untimely because the applicable rule of practice
(§ 17-47), which allows the court to grant a continuance for discovery
purposes on the basis of reasons stated in the affidavits of a party
opposing a motion for summary judgment, contains no timing require-
ment, Practice Book § 17-47 imports the forty-five day filing deadline
set forth in Practice Book § 17-45 (b); moreover, this court rejected
S’s claim that an alleged undocumented agreement between counsel,
specifically, that A Co. would not claim its motion for summary judgment
until S had taken a deposition of A Co.’s corporate designee, can usurp
the requirements of the rules of practice, including the need to seek
extensions of time in a timely manner.
Argued September 24—officially released December 17, 2019
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district
of Middlesex, where the defendant was defaulted for
failure to plead; thereafter, Bank of America, N.A., was
cited in as a defendant and the plaintiff filed an amended
complaint; subsequently, AJX Mortgage Trust I was sub-
stituted as the party plaintiff; thereafter, the court, Auri-
gemma, J., granted the substitute plaintiff’s motion for
judgment as to counts two through six of the amended
complaint; subsequently, the court granted the substi-
tute plaintiff’s motion for a judgment of strict foreclo-
sure and rendered judgment thereon, from which the
named defendant appealed to this court, which reversed
in part the trial court’s judgment and remanded the
case for further proceedings; thereafter, the substitute
plaintiff withdrew counts five and six of the amended
complaint; subsequently, the court, Aurigemma, J.,
denied the named defendant’s motion for an extension
of time to file an opposition to the substitute plaintiff’s
motion for summary judgment as to liability only on
count one of the amended complaint; thereafter, the
court, Aurigemma, J., granted the substitute plaintiff’s
motion for summary judgment, denied the named defen-
dant’s motion to reargue and for reconsideration, and
granted the substitute plaintiff’s motion for a judgment
of strict foreclosure and rendered judgment thereon,
from which the named defendant appealed to this court.
Reversed; further proceedings.
Thomas P. Willcutts, with whom, on the brief, was
Michael J. Habib, for the appellant (named defendant).
Benjamin T. Staskiewicz, for the appellee (substi-
tute plaintiff).
Opinion
MOLL, J. The defendant, Daniel J. Scroggin also
known as Daniel F. Scroggin also known as Daniel
Scroggin, appeals from the judgment of strict foreclo-
sure rendered by the trial court, for the second time,
in favor of the substitute plaintiff, AJX Mortgage Trust
I, a Delaware Trust, Wilmington Savings Fund Society,
FSB, Trustee.1 The defendant makes the following
claims on appeal: (1) the trial court improperly failed
to recuse itself pursuant to General Statutes § 51-183c
following our remand in Chase Home Finance, LLC v.
Scroggin, 178 Conn. App. 727, 176 A.3d 1210 (2017)
(Chase I); (2) the trial court erred by granting the plain-
tiff’s motion for summary judgment as to liability only
without hearing oral argument on that motion; and (3)
the trial court erred in denying on timeliness grounds
the defendant’s motion for an extension of time, filed
pursuant to Practice Book § 17-47, to respond to the
plaintiff’s motion for summary judgment. We agree with
the defendant’s second claim and, accordingly, reverse
the judgment of the trial court.2
We begin with an abbreviated recitation of the factual
and procedural background of this dispute, as set forth
by this court in Chase I. ‘‘In December, 2009, Chase
commenced the present foreclosure action against the
defendant. In its original one count complaint, Chase
alleged, in relevant part, that on July 20, 2007, the defen-
dant executed a promissory note in the amount of
$217,500 in favor of Chase Bank USA, N.A., and that
the loan was secured by a mortgage of the premises
located at 25 Church Street in Portland, which was
owned by and in the possession of the defendant. Chase
alleged that the mortgage was recorded on the Portland
land records, that the mortgage was assigned to it, and
that it was the holder of the note and mortgage. Chase
alleged that beginning on July 1, 2009, the defendant
failed to make installment payments of principal and
interest required by the note and that it had exercised
its option to declare the entire unpaid balance of the
note (in the amount of $214,939.97) due and payable
to it. . . . By way of relief, Chase sought, among other
things, a foreclosure of the mortgage and the immediate
possession of the subject premises.
‘‘On June 7, 2010, Chase filed a motion for default
for failure to plead. On that same day, Chase filed a
motion for judgment of strict foreclosure and a finding
that it was entitled to possession of the subject prem-
ises. On June 16, 2010, the clerk of the court granted
the motion for default but, at that time, the court did
not rule on the motion seeking a judgment of strict fore-
closure.
‘‘On September 8, 2010, Chase filed a request for
leave to amend its complaint and attached a proposed
amended complaint. The defendant did not object. The
amended complaint consisted of six counts. The first
count brought against the defendant sought a foreclo-
sure and generally was consistent with the allegations
brought against the defendant in the original one count
complaint . . . . The second, third, and fourth counts
of the amended complaint were brought against Bank
of America. . . . Counts five and six of the amended
complaint, both of which were directed at the defen-
dant, [were] related to Chase’s allegations with respect
to Bank of America’s mortgage interest in the subject
property. . . .
‘‘At no time did the defendant move to set aside the
default for failure to plead entered on June 16, 2010.
On November 2, 2015, however, the defendant disclosed
a defense, stating that he ‘intend[ed] to challenge the
plaintiff’s alleged right and standing to foreclose upon
the subject mortgage.’ On the same day, the defendant
filed an answer to Chase’s original complaint.
‘‘The plaintiff did not file a motion for default for
failure to plead against the defendant with respect to
the amended complaint. On November 24, 2015, how-
ever, the plaintiff filed a motion for judgment against
the defendant with respect to counts two, three, four,
five, and six of the amended complaint. On the same
day, the plaintiff moved that the court enter a judgment
of strict foreclosure . . . .
‘‘On April 4, 2016, the defendant filed an answer to
the plaintiff’s amended complaint. In his answer to the
amended complaint, the defendant, among other things,
admitted portions of the allegations made in the first
count and, with respect to other portions of the first
count, left the plaintiff to its proof. Also, on April 4,
2016, the defendant filed an objection to the plaintiff’s
motion for judgment as to count six of the amended
complaint and an objection to the plaintiff’s motion for
judgment of strict foreclosure. On that date, the court
[Aurigemma, J.] held a hearing on the plaintiff’s motion
for judgment. By order dated April 4, 2016, the court
granted the plaintiff’s motion for judgment with respect
to counts two, three, four, and five of the amended
complaint, but did not rule with respect to counts one
or six of the amended complaint.
‘‘Following the hearing, the plaintiff replied to the
defendant’s objection to its motion for judgment of
strict foreclosure, and the defendant filed a memoran-
dum of law in which he further articulated the reasons
underlying his objection to the motion for judgment of
strict foreclosure. At a hearing on April 18, 2016, the
parties appeared and presented additional arguments
[before Judge Aurigemma]. . . .
‘‘The court granted the plaintiff’s motion for judgment
of strict foreclosure . . . and rendered judgment on
count six of the plaintiff’s amended complaint in the
plaintiff’s favor.’’ (Footnotes omitted.) Id., 730–37.
Thereafter, the defendant appealed from the judg-
ment of strict foreclosure rendered on count one of the
amended complaint. Id., 737 n.9. On appeal, this court
concluded that ‘‘[i]n light of the changes to the plaintiff’s
case that were reflected in the amended complaint, it
was inequitable for the court not to have considered
the default entered in 2010 to have been extinguished.
Thus, the court should have considered the defendant’s
answer to the amended complaint as well as his dis-
closed defense. Although it was appropriate for the
court to have considered the lengthy period of time
that followed the entry of the default, it nonetheless
abused its discretion by failing to consider the effect
of the amended complaint upon that default.’’ (Footnote
omitted.) Id., 745. Accordingly, this court reversed the
judgment of strict foreclosure and remanded the case
for additional proceedings. Id., 746.
On March 26, 2018, following our remand, the plaintiff
filed a motion for summary judgment as to liability only
on count one of its amended complaint. The forty-five
day period set forth in Practice Book § 17-45 (b) for
the filing of a response to the motion for summary
judgment expired on May 10, 2018. On May 24, 2018,
the defendant filed a document captioned ‘‘Practice
Book § 17-47 Motion for Extension of Time to Respond
to the Plaintiff’s Motion for Summary Judgment, or
Alternatively, Objection to Summary Judgment.’’ The
trial court denied that motion as untimely. At no time
did the defendant file a substantive response to the
plaintiff’s motion for summary judgment. See Practice
Book § 17-45 (b).
On May 29, 2018, the parties appeared before Judge
Aurigemma at short calendar on the plaintiff’s motion
for summary judgment, which had been marked
‘‘ready.’’ Counsel for the defendant acknowledged that
he had not filed a response to the motion. Thereupon,
the court ruled: ‘‘Well, there’s no opposition, so the
motion’s granted, absent opposition.’’ The defendant’s
counsel then stated that, pursuant to § 51-183c, the trial
court was required to recuse itself. The court responded
by asking whether the defendant’s counsel had filed a
motion to recuse, to which he indicated that he had not,
and the proceedings concluded. A subsequent motion
to reargue filed by the defendant was denied.
On June 21, 2018, the plaintiff filed a motion for a
judgment of strict foreclosure, and on July 9, 2018,
the court granted the motion. This appeal followed.
Additional facts and procedural background will be pro-
vided as necessary.
I
The defendant first claims that, pursuant to § 51-183c,
Judge Aurigemma should have recused herself from
ruling on ‘‘material issues’’ following this court’s rever-
sal of the judgment of strict foreclosure in Chase I. The
plaintiff counters that (1) recusal was unwarranted in
the absence of a written motion to disqualify filed pursu-
ant to Practice Book §§ 1-22 (a)3 and 1-23,4 and (2) § 51-
183c did not apply because there was no ‘‘trial’’ within
the meaning of the statute. We agree with the plaintiff’s
second argument.5
We set forth the applicable standard of review. The
defendant’s claim that § 51-183c required recusal under
the circumstances of this case presents a question of
statutory interpretation, thereby invoking our plenary
review. See State v. Riley, 190 Conn. App. 1, 8, 209 A.3d
646, cert. denied, 333 Conn. 923, A.3d (2019). ‘‘The
principles that govern statutory construction are well
established. When construing a statute, [o]ur fundamen-
tal objective is to ascertain and give effect to the appar-
ent intent of the legislature. . . . In other words, we
seek to determine, in a reasoned manner, the meaning
of the statutory language as applied to the facts of [the]
case, including the question of whether the language
actually does apply. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . When
a statute is not plain and unambiguous, we also look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation and [common-law]
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) Mickey v.
Mickey, 292 Conn. 597, 613–14, 974 A.2d 641 (2009).
Section 51-183c provides: ‘‘No judge of any court who
tried a case without a jury in which a new trial is granted,
or in which the judgment is reversed by the Supreme
Court, may again try the case. No judge of any court
who presided over any jury trial, either in a civil or
criminal case, in which a new trial is granted, may again
preside at the trial of the case.’’
Our Supreme Court, as well as this court, have pre-
viously held that § 51-183c applies exclusively to ‘‘trials’’
and not to other types of adversarial proceedings. See,
e.g., State v. Miranda, 260 Conn. 93, 131, 794 A.2d 506
(‘‘[§] 51-183c applies exclusively to ‘trials’ ’’), cert.
denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175
(2002); Lafayette Bank & Trust Co. v. Szentkuti, 27
Conn. App. 15, 19–21, 603 A.2d 1215 (‘‘Section 51-183c
unambiguously applies exclusively to ‘trials,’ as distin-
guished from pretrial or short calendar matters. . . .
The term ‘trial’ was not intended to include either pre-
trial or short calendar proceedings.’’ [Citations omit-
ted.]), cert. denied, 222 Conn. 901, 606 A.2d 1327 (1992).
On the basis of the foregoing interpretation, our appel-
late courts have repeatedly concluded that where the
adversarial proceeding at issue did not constitute a
‘‘trial,’’ § 51-183c does not require recusal. See, e.g.,
State v. Miranda, supra, 131–32 (sentencing hearing);
Board of Education v. East Haven Education Assn., 66
Conn. App. 202, 215–16, 784 A.2d 958 (2001) (arbitration
proceedings); Lafayette Bank & Trust Co. v. Szentkuti,
supra, 16–17, 20–21 (property valuation hearing in fore-
closure action).
Given the well settled interpretation of § 51-183c, we
conclude that § 51-183c did not apply in the present
case so as to require Judge Aurigemma’s recusal follow-
ing the reversal of the judgment of strict foreclosure
in Chase I because she had not presided over any ‘‘trial.’’
Instead, the judgment of strict foreclosure underlying
Chase I was rendered in the context of a short calendar
proceeding, to which § 51-183c does not apply.
In support of his claim that § 51-183c required Judge
Aurigemma’s recusal following our remand in Chase I,
the defendant relies on Higgins v. Karp, 243 Conn. 495,
706 A.2d 1 (1998) (Higgins II), and Gagne v. Vaccaro,
133 Conn. App. 431, 35 A.3d 380 (2012), rev’d on other
grounds, 311 Conn. 649, 90 A.3d 196 (2014). Neither of
these authorities supports the defendant’s position. We
address them in turn.
First, Higgins II was the product of extensive litiga-
tion, culminating in two appeals to our Supreme Court,
arising out of a fatal airplane crash. Higgins II, supra,
243 Conn. 498–99. Initially, in a consolidated case, the
trial court denied the defendant’s motions to set aside
defaults entered against him for failure to plead, and
the case proceeded to a trial on damages, wherein the
jury awarded significant damages, with judgments ren-
dered accordingly. Higgins v. Karp, 239 Conn. 802,
806–807, 687 A.2d 539 (1997) (Higgins I). In Higgins I,
our Supreme Court reversed the judgments, concluding
that the trial court abused its discretion by denying the
defendant’s motions to set aside the defaults. Id., 811.
On remand, the trial court again denied the defendant’s
motions to set aside the defaults. Higgins II, supra,
500–502. In Higgins II, the defendant appealed from,
and our Supreme Court reversed, the judgment of the
trial court because, this time, the trial court failed to
consider additional relevant evidence. Id., 509–10. In
footnote 7 in Higgins II, our Supreme Court stated that
on remand following Higgins I, and ‘‘[i]n accordance
with . . . § 51-183c, [it had] ordered that the matter be
assigned to a judge other than the judge who originally
had decided the motions [to set aside the defaults].’’
Id., 500 n.7.
In the present case, the defendant particularly relies
on that footnote in Higgins II for the proposition that
our Supreme Court applied § 51-183c, following the
reversal of the trial court’s refusal to set aside the
defaults for failure to plead, to bar the same trial judge
from making a subsequent ruling on those motions.
Thus, the defendant contends, there is no meaningful
difference between the reversal of the judgments in
Higgins I and the reversal of the judgment in Chase I.
A close reading of the decisions in Higgins I and Hig-
gins II belies the defendant’s argument, however,
because, in Higgins I, the trial court, Hurley, J., not
only ruled on the motions to set aside the defaults in
the first instance, but also presided at the trial on dam-
ages and rendered judgments in accordance with the
jury’s verdicts, from which the Higgins I appeal was
taken. See Higgins I, supra, 239 Conn. 807; see also
Karp v. Coric, Superior Court, judicial district of New
London, Docket Nos. 530472 and 529975 (June 9, 1995)
(14 Conn. L. Rptr. 386) (memorandum of decision by
Judge Hurley on defendant’s motions to set aside
defaults), rev’d sub nom. Higgins v. Karp, 239 Conn.
802, 687 A.2d 539 (1997). Consequently, when those
judgments were reversed in Higgins I, § 51-183c applied
so as to preclude Judge Hurley from presiding over the
matter again because he had already presided over a
trial, i.e., the trial on damages. The circumstances in
Higgins I and Higgins II are readily distinguishable
from those underlying the present appeal. Although the
judgment of strict foreclosure rendered by Judge Auri-
gemma was reversed by this court in Chase I, Judge
Aurigemma had not, unlike Judge Hurley in Higgins I,
presided over a ‘‘trial,’’ as required by § 51-183c.
Second, in Gagne v. Vaccaro, supra, 133 Conn. App.
435–36, this court concluded that the trial court improp-
erly refused to recuse itself pursuant to § 51-183c from
hearing the plaintiff’s motion for attorney’s fees on the
basis that we had reversed an earlier ruling on attorney’s
fees by the same trial judge. However, our Supreme
Court subsequently reversed this court’s decision on
the ground that the recusal issue was moot because
the defendant had failed to challenge the trial court’s
finding that the defendant waived his right to seek dis-
qualification under § 51-183c as a result of noncompli-
ance with the procedural requirements of Practice Book
§ 1-23 on appeal.6 Gagne v. Vaccaro, 311 Conn. 649,
659–60, 90 A.3d 196 (2014). As a result, our Supreme
Court reversed the judgment of this court and remanded
the case with direction to dismiss the appeal as to the
issue of disqualification because this court did not have
subject matter jurisdiction over the § 51-183c claim
underlying the decision. Id., 659–60, 662. In light of the
foregoing, our decision on the merits in Gagne is devoid
of any precedential value in the absence of subject
matter jurisdiction; see Labarbera v. Clestra Hauser-
man, Inc., 369 F.3d 224, 226–27 n.2 (2d Cir. 2004)
(explaining that no precedential value exists in lower
court decision that was reversed for lack of subject
matter jurisdiction); and the defendant’s reliance
thereon is wholly misplaced.
In sum, we conclude that § 51-183c did not apply
following Chase I so as to require Judge Aurigemma’s
recusal because she had not presided over a ‘‘trial’’ in
the matter.
II
The defendant next claims that the trial court erred
by granting the plaintiff’s motion for summary judgment
without hearing oral argument on that motion pursuant
to Practice Book § 11-18.7 The plaintiff posits that the
trial court did not need to hear argument because (1) the
defendant did not follow the procedural requirements
of § 11-18 (a) (2), and (2) the defendant waived oral
argument. We agree with the defendant.
We begin by setting forth the applicable standard of
review and legal principles. ‘‘Our review of the trial
court’s decision to grant [a] motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860
(2013). Practice Book § 11-18 provides in relevant part:
‘‘(a) Oral argument is at the discretion of the judicial
authority except as to . . . motions for summary judg-
ment . . . and/or hearing on any objections thereto.
For those motions, oral argument shall be a matter of
right, provided: (1) the motion has been marked ready
in accordance with the procedure that appears on the
short calendar on which the motion appears, or (2) a
nonmoving party files and serves on all other parties
. . . a written notice stating the party’s intention to
argue the motion . . . . Such a notice shall be filed on
or before the third day before the date of the short
calendar date . . . .’’ See also Singhaviroj v. Board of
Education, 124 Conn. App. 228, 236, 4 A.3d 851 (2010)
(‘‘[p]arties are entitled to argue a motion for summary
judgment as of right’’).
Our recent decision in Bayview Loan Servicing, LLC
v. Frimel, 192 Conn. App. 786, A.3d (2019), involv-
ing similar circumstances to those in the present appeal,
is controlling. In Bayview Loan Servicing, LLC, the
defendant appealed from a judgment of foreclosure by
sale, arguing, inter alia, that the court erred in granting
the plaintiff’s motion for summary judgment without
holding oral argument. Id., 788, 792. Simply put, this
court held that, because Practice Book § 11-18 provided
the defendant with the right to oral argument on the
merits of the plaintiff’s motion for summary judgment,
the failure to conduct oral argument constituted revers-
ible error. Id., 796–97.
Applying Bayview Loan Servicing, LLC, to the pres-
ent case, we conclude that the trial court erred by grant-
ing the plaintiff’s motion for summary judgment without
hearing oral argument on the motion. We have carefully
reviewed the approximately two page transcript from
the short calendar proceeding8 and conclude that the
opportunity for oral argument required by Practice
Book § 11-18 (a) was not provided. That is, upon con-
firming that the defendant had not filed a written
response to the plaintiff’s motion for summary judg-
ment, the court did not inquire whether the defendant’s
counsel wanted to be heard, namely, to argue whether
the plaintiff had met its initial burden. Instead, the court
immediately granted the motion ‘‘absent opposition.’’
The plaintiff raises two arguments supporting its
assertion that oral argument on its motion for summary
judgment was not required—neither of which is persua-
sive. First, the plaintiff contends that the defendant
did not comply with the procedural requirements of
Practice Book § 11-18 (a) (2) because he failed to file
a written notice seeking oral argument. This argument
fails because the plaintiff overlooks the fact that the
conditions for oral argument being a matter of right for
motions for summary judgment contained in § 11-18 (a)
are disjunctive. That is, either the motion for summary
judgment had to be marked ready; Practice Book § 11-
18 (a) (1); or the defendant, as the nonmovant, had to
file and serve a written notice stating his intention to
argue the motion. Practice Book § 11-18 (a) (2). Here,
the motion for summary judgment had been marked
ready, and the parties appeared accordingly for the
May 29, 2018 short calendar. Thus, § 11-18 (a) (1) was
satisfied, and, as a result, the defendant was entitled
to oral argument on the motion for summary judgment
as of right.
Second, the plaintiff contends that the defendant
waived oral argument as to the plaintiff’s motion for
summary judgment under Practice Book § 11-18 (d),
which provides that the ‘‘[f]ailure to appear and present
argument on the date set by the judicial authority shall
constitute a waiver of the right to argue unless the
judicial authority orders otherwise.’’ This argument fails
because not only did the defendant’s counsel appear
for argument, but our review of the summary judgment
hearing transcript; see footnote 8 of this opinion; reveals
that the trial court ruled on the motion before either
party could argue the merits of the motion. Cf. Marut
v. IndyMac Bank, FSB, 132 Conn. App. 763, 771–72, 34
A.3d 439 (2012) (Practice Book § 11-18 [d] applies when
party fails to appear for argument). The plaintiff does
not cite any relevant authority for its proposition that
the waiver rule contained in § 11-18 (d) is applicable
here.
In sum, we conclude that the defendant had a right
to oral argument, which was not waived, with respect
to the plaintiff’s motion for summary judgment, and,
therefore, the trial court improperly adjudicated the
motion without permitting oral argument.
III
Finally, the defendant claims that the trial court
abused its discretion in denying on timeliness grounds
his motion for an extension of time to respond to the
plaintiff’s motion for summary judgment. We disagree.
We begin with the applicable standard of review and
rules of practice. A trial court’s adjudication of a motion
for a continuance pursuant to Practice Book § 17-47 is
reviewed for an abuse of discretion. See, e.g., Sheridan
v. Board of Education, 20 Conn. App. 231, 237–38, 565
A.2d 882 (1989) (concluding that trial court did not
abuse its discretion in denying motion to stay summary
judgment proceeding in light of nonmovant’s failure to
comply with Practice Book [1978–97] § 382, predeces-
sor to Practice Book § 17-47, in timely manner). Practice
Book § 17-45, entitled ‘‘Proceedings upon Motion for
Summary Judgment; Request for Extension of Time To
Respond,’’ provides in relevant part: ‘‘(a) A motion for
summary judgment shall be supported by appropriate
documents, including but not limited to affidavits, certi-
fied transcripts of testimony under oath, disclosures,
written admissions and other supporting documents.
(b) Unless otherwise ordered by the judicial authority,
any adverse party shall file and serve a response to the
motion for summary judgment within forty-five days of
the filing of the motion, including opposing affidavits
and other available documentary evidence. . . .’’ Relat-
edly, Practice Book § 17-47, entitled ‘‘When Appropriate
Documents Are Unavailable,’’ provides: ‘‘Should it
appear from the affidavits of a party opposing the
motion that such party cannot, for reasons stated, pres-
ent facts essential to justify opposition, the judicial
authority may deny the motion for judgment or may
order a continuance to permit affidavits to be obtained
or discovery to be had or may make such other order
as is just.’’
‘‘In Plouffe v. New York, N.H. & H.R. Co., 160 Conn.
482, 490, 280 A.2d 359 (1971), our Supreme Court deter-
mined that the trial court had abused its discretion
when it refused to grant a reasonable continuance to
allow the plaintiff to investigate the truth of the facts
alleged in the defendant’s affidavit and to research the
legal issues in a personal injury action. In that case,
the court adopted the following principle, derived from
summary judgment under the [F]ederal [R]ules of [C]ivil
[P]rocedure: Where, however, the party opposing sum-
mary judgment timely presents his affidavit under [r]ule
56 (f) [of the Federal Rules of Civil Procedure] stating
reasons why he is presently unable to proffer eviden-
tiary affidavits he directly and forthrightly invokes the
trial court’s discretion. Unless dilatory or lacking in
merit, the motion should be liberally treated. Exercising
a sound discretion, the trial court then determines
whether the stated reasons are adequate. And absent
abuse of discretion, the trial court’s determination will
not be interfered with by the appellate court.’’ (Empha-
sis in original; internal quotation marks omitted.) Sheri-
dan v. Board of Education, supra, 20 Conn. App. 237–38.
In Sheridan, this court applied the principles set forth
in Plouffe and held that, where the plaintiff, as the
summary judgment nonmovant, had failed to comply
with Practice Book (1978–97) § 382, the predecessor to
Practice Book § 17-47, which permits the trial court to
grant a continuance to accommodate discovery to jus-
tify opposition to a motion for summary judgment, the
plaintiff’s ‘‘lack of diligence [was] fatal to her claim’’
that the trial court abused its discretion by not granting
a continuance. Id., 236 n.4, 238.
The same analysis applies to the present case and
leads to the same result. As previously recited in this
opinion, the forty-five day period set forth in Practice
Book § 17-45 (b) for the filing of a response to the
plaintiff’s motion for summary judgment expired on
May 10, 2018. Such deadline passed without the defen-
dant filing a response or a motion for an extension of
time. Two weeks later, on May 24, 2018, the defendant
filed a motion for an extension of time to respond to
the plaintiff’s motion for summary judgment, or alterna-
tively, an objection to summary judgment. That motion,
citing Practice Book § 17-47, attached the affidavit of
the defendant’s attorney, Michael J. Habib, in which he
(1) explained that he wanted to take the deposition of
the plaintiff’s corporate designee in order to challenge
the plaintiff’s standing and (2) detailed efforts made to
procure the deposition.9 The motion did not state any
reasons to justify its untimeliness. The trial court denied
the motion as untimely, reasoning as follows: ‘‘Practice
Book [§] 17-45 requires a response to be filed within
[forty-five] days. The defendant has not done so, and
the request for [an] extension of time has been filed
more than [forty-five] days from the date of the filing
of the [motion for] summary judgment.’’
Like the plaintiff in Sheridan, the defendant in the
present case failed to comply with Practice Book § 17-
47 in a timely manner, and such noncompliance is fatal
to his third claim on appeal. Because the defendant did
not timely comply with the requirements of § 17-47, we
conclude that the trial court did not abuse its discretion
by denying the defendant’s motion for an extension of
time to respond to the plaintiff’s motion for summary
judgment and to conduct discovery relating thereto.
In support of his argument that the trial court abused
its discretion by denying his motion for an extension of
time as untimely, the defendant contends that Practice
Book § 17-47 contains no timing requirement. This con-
tention is without merit. By its express terms, § 17-47
allows the trial court to grant a continuance for discov-
ery purposes on the basis of reasons stated in ‘‘the
affidavits of a party opposing [a] motion’’ for summary
judgment. Although the rule itself does not specify when
‘‘the affidavits of a party opposing [a] motion’’ for sum-
mary judgment must be filed, that answer is readily
found within the summary judgment section of chapter
17 of the Practice Book, i.e., §§ 17-44 through 17-51.
Specifically, Practice Book § 17-45 (b) provides in rele-
vant part that ‘‘[u]nless otherwise ordered by the judi-
cial authority, any adverse party shall file and serve a
response to the motion for summary judgment within
forty-five days of the filing of the motion, including
opposing affidavits . . . .’’ (Emphasis added.) Simply
put, Practice Book § 17-47 imports the forty-five day
filing deadline set forth in Practice Book § 17-45.
Finally, we reject the defendant’s suggestion that an
alleged undocumented agreement between counsel—
specifically, that the plaintiff would not claim its motion
for summary judgment until the defendant had taken
a deposition of the plaintiff’s corporate designee (which
the plaintiff denies)—can usurp the requirements of the
rules of practice, including the need to seek extensions
of time in a timely manner.10
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
In a prior appeal, this court explained that in September, 2010, after the
named plaintiff, Chase Home Finance, LLC (Chase), had commenced this
action against the defendant, ‘‘Chase filed a motion to cite in Bank of
America, N.A. (Bank of America), as a [third-party] defendant. The court
granted this motion. Subsequently, [Chase] served Bank of America with
an amended complaint that alleged that Bank of America was a lien holder.
In March, 2011, Bank of America was defaulted for failure to appear. In
January, 2012, Middconn Federal Credit Union sought to be made a party
defendant to the action as a postjudgment lis pendens holder. The court
granted the request. Later, Middconn Federal Credit Union was defaulted
for failure to plead and failure to disclose a defense.
‘‘In June, 2012, Chase moved to substitute JPMorgan Chase Bank, N.A.,
as [the] plaintiff in the action. The court granted the motion. In June, 2014,
JPMorgan Chase Bank, N.A., moved to substitute Ventures Trust 2013-I-H-
R by MCM Capital Partners, LLC, its trustee, as [the] plaintiff in the action.
The court granted the motion. In July, 2015, Ventures Trust 2013-I-H-R by
MCM Capital Partners, LLC, its trustee, moved to substitute AJX Mortgage
Trust I, a Delaware Trust, Wilmington Savings Fund Society, FSB, Trustee,
as [the] plaintiff in the action. The court granted the motion.’’ Chase Home
Finance, LLC v. Scroggin, 178 Conn. App. 727, 729 n.1, 176 A.3d 1210 (2017).
As in the prior appeal, we will refer to AJX Mortgage Trust I, a Delaware
Trust, Wilmington Savings Fund Society, FSB, Trustee, as the plaintiff. Addi-
tionally, because neither Bank of America nor Middconn Federal Credit
Union is participating in this appeal, we will refer to Daniel J. Scroggin as
the defendant.
2
Because our resolution of the defendant’s second claim, set forth in part
II of this opinion, presumes that there was no error with respect to whether
the trial court should have recused itself, we find it prudent to explain why,
contrary to the defendant’s position, recusal was unwarranted under the
circumstances here. See part I of this opinion. In addition, although our
resolution of the defendant’s second claim is dispositive of this appeal, we
briefly address his third claim because it is likely to arise on remand. See
Redding v. Elfire, LLC, 74 Conn. App. 491, 492 n.2, 812 A.2d 211 (2003);
see also part III of this opinion.
3
Practice Book § 1-22 (a) provides in relevant part: ‘‘A judicial authority
shall, upon motion of either party or upon its own motion, be disqualified
from acting in a matter . . . because the judicial authority previously tried
the same matter and a new trial was granted therein or because the judgment
was reversed on appeal. . . .’’
4
Practice Book § 1-23 provides: ‘‘A motion to disqualify a judicial authority
shall be in writing and shall be accompanied by an affidavit setting forth
the facts relied upon to show the grounds for disqualification and a certificate
of the counsel of record that the motion is made in good faith. The motion
shall be filed no less than ten days before the time the case is called for trial
or hearing, unless good cause is shown for failure to file within such time.’’
5
In light of our resolution of the second argument, we need not address
the plaintiff’s first argument.
6
Rather, on appeal, the defendant challenged the nonrecusal under Prac-
tice Book § 1-22 (a) and § 51-183c. Gagne v. Vaccaro, 311 Conn. 649, 660,
90 A.3d 196 (2014).
7
In his principal appellate brief, the defendant appears to couch an addi-
tional argument that he was under no obligation to submit a response to
the plaintiff’s motion for summary judgment within his overarching con-
tention that the trial court failed to hear oral argument on that motion. The
plaintiff counters that the trial court did not need to hear argument because
the defendant did not file an opposition to the motion. Although we reverse
on the grounds set forth in part II of this opinion, we remind the parties
that it is only upon the satisfaction of a summary judgment movant’s initial
burden that the burden shifts to the nonmovant to demonstrate, on the basis
of a timely submission of an evidentiary showing, that there exists a genuine
issue of material fact to defeat summary judgment. See Ramirez v. Health
Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).
8
The transcript from the four minute May 29, 2018 proceeding provides
in its entirety:
‘‘The Court: Your next matter?
‘‘[The Plaintiff’s Counsel]: This is position 39, Your Honor.
‘‘The Court: Do I have a 39?
‘‘(Discussion off the record.)
‘‘The Court: Sorry, I have it. And your name for the record?
‘‘[The Defendant’s Counsel]: Michael Habib for the defendant, David
Scroggin.
‘‘The Court: Okay. And, Mr. Habib, you filed no response?
‘‘[The Defendant’s Counsel]: That’s correct, Your Honor. I was recently
retained in the case.
‘‘The Court: Okay. All right. Well, you’ve had an appearance since Septem-
ber of 2017.
‘‘[The Defendant’s Counsel]: That was in the appellate case, Your Honor.
I was not retained for the trial court case until April 21st of this year.
‘‘The Court: Right. Okay. And had you filed your motion for extension
then, it would have been timely.
‘‘[The Defendant’s Counsel]: Okay.
‘‘The Court: So—
‘‘[The Defendant’s Counsel]: I understand, but I noticed the deposition at
that time, Your Honor.
‘‘The Court: Okay.
‘‘[The Defendant’s Counsel]: And I thought I had an agreement with oppos-
ing counsel as to when we rescheduled the deposition for when it would
be called up or when it would be reclaimed, which we had discussed in
court—[coplaintiff’s counsel] and I had discussed in court.
‘‘The Court: Okay.
‘‘[The Defendant’s Counsel]: And then four days later, they filed the
reclaim, Your Honor.
‘‘The Court: Okay. You know anything about that?
‘‘[The Plaintiff’s Counsel]: I do not, Your Honor. I spoke with [coplaintiff’s
counsel] in preparation for this, and he made no mention of any agreement.
‘‘The Court: Okay. [Alright]. Well, there’s no opposition, so the motion’s
granted, absent opposition.
‘‘[The Defendant’s Counsel]: And, Your Honor, if I could just place some-
thing on the record.
‘‘The Court: Sure.
‘‘[The Defendant’s Counsel]: I do believe under § 51-183c, Your Honor,
that this court’s required to recuse itself in this matter, as well as the previous
motion that was denied by the court.
‘‘The Court: Why?
‘‘[The Defendant’s Counsel]: Because—
‘‘The Court: Have you filed a motion to recuse?
‘‘[The Defendant’s Counsel]: I have not, Your Honor.
‘‘The Court: Okay. Thank you.
‘‘[The Defendant’s Counsel]: Thank you, Your Honor.
‘‘[The Plaintiff’s Counsel]: Thank you, Your Honor.’’
9
We note that, in arguing in his principal appellate brief the merits of his
motion for an extension of time, the defendant improperly goes beyond
what was stated in the motion and accompanying affidavit.
10
The defendant also cursorily argues that, by ruling on his motion for
an extension of time prior to the motion appearing on the short calendar,
the court violated Practice Book § 11-13 and deprived him of the opportunity
to request oral argument on the motion pursuant to Practice Book § 11-18
(f). We decline to consider this claim because it is inadequately briefed. See
State v. Hanisko, 187 Conn. App. 237, 254–55 n.9, 202 A.3d 375 (2019).