Moutinho v. 500 North Avenue, LLC ( 2019 )

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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)
Sheldon, Keller and Moll, Js.*
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:
1. 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.
2. 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.
3. 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 mort-
gages were executed, resulted in a material variance between the plead-
ings 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 suffi-
ciency of M’s evidence relating to the ownership of the respective proper-
ties 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.
4. N Co. could not prevail in 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.
Argued November 15, 2018—officially released August 6, 2019
Procedural History
Actions to foreclose mortgages on certain real prop-
erties, 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.
Jonathan J. Klein, with whom, on the brief, was
Stephen R. Bellis, for the appellant (defendant 500
North Avenue, LLC).
James M. Nugent, with whom, on the brief, was
James R. Winkel, for the appellee (plaintiff).
Opinion
MOLL, J. The only defendant participating in this
appeal, 500 North Avenue, LLC,1 appeals from the judg-
ments of strict foreclosure, rendered after a court trial,
in four jointly tried foreclosure actions commenced by
the plaintiff, Manuel Moutinho, Trustee for the Mark IV
Construction Company, Inc., 401 (K) Savings Plan.2 On
appeal, the defendant claims3 that the trial court erred
when it (1) failed to rule on the defendant’s motion for
a judgment of dismissal for failure to make out a prima
facie case pursuant to Practice Book § 15-8 (motion to
dismiss) at the close of the plaintiff’s case-in-chief, (2)
denied the defendant’s motion to dismiss, and (3)
denied, without cause, the defendant’s right to make
closing arguments or to file posttrial briefs in lieu of
closing arguments pursuant to Practice Book § 15-5 (a).4
With respect to the defendant’s first and second claims,
we conclude that (1) such claims are not reviewable
pursuant to our Supreme Court precedent and (2) in
the alternative, they fail on the merits. With respect to
the defendant’s third claim, we find no error. Accord-
ingly, we affirm the judgments of the trial court.
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 Devel-
opers, LLC, and D.A. Black, Inc. (original mortgagors),
executed, respectively, promissory notes and mort-
gages securing those notes, pertaining to certain parcels
of commercial real property located in Bridgeport, Mil-
ford, and Stratford. Gus Curcio, Sr., executed corres-
ponding 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. Conse-
quently, during the period of 2009 to 2011, the plaintiff
commenced eight foreclosure actions, asserting fore-
closure 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 foreclo-
sure claims pursuant to Practice Book § 15-8. The court
effectively reserved its decision until after the close of
evidence. The defendant proceeded to offer evidence
in its case, and the plaintiff’s rebuttal case followed.
After the close of evidence, the court issued an oral
ruling from the bench, denying the motion to dismiss
without stating its grounds therefor.
On July 3, 2013, the court issued eight separate memo-
randa of decision rendering a judgment of strict foreclo-
sure in favor of the plaintiff in each action. On Septem-
ber 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 nec-
essary.
I
The defendant’s first two claims on appeal relate to
its Practice Book § 15-8 motion to dismiss, made orally
at the close of the plaintiff’s case-in-chief. The defen-
dant first claims that the court erred when it failed to
rule on its § 15-8 motion to dismiss at the close of the
plaintiff’s case-in-chief. The defendant next claims, as
a substantive matter, that the court erred when it denied
its § 15-8 motion to dismiss. These claims are unavailing
because we conclude, on the basis of binding Supreme
Court precedent, that the court’s denial of the defen-
dant’s § 15-8 motion to dismiss, as well as the timing
thereof, are not appealable.
Practice Book § 15-8, titled ‘‘Dismissal in Court Cases
for Failure To Make Out a Prima Facie Case,’’ provides:
‘‘If, on the trial of any issue of fact in a civil matter
tried to the court, the plaintiff has produced evidence
and rested, a defendant may move for judgment of dis-
missal, and the judicial authority may grant such
motion if the plaintiff has failed to make out a prima
facie case. The defendant may offer evidence in the
event the motion is not granted, without having
reserved the right to do so and to the same extent as
if the motion had not been made.’’ (Emphasis added.)
The statutory corollary to this rule of practice is General
Statutes § 52-210, which provides: ‘‘If, on the trial of
any issue of fact in a civil action, the plaintiff has pro-
duced his evidence and rested his cause, the defendant
may move for judgment as in case of nonsuit, and the
court may grant such motion, if in its opinion the plain-
tiff has failed to make out a prima facie case.’’ ‘‘We
note that [a] motion for judgment of dismissal has
replaced the former motion for nonsuit . . . for failure
to make out a prima facie case.’’ (Internal quotation
marks omitted.) Jackson v. Water Pollution Control
Authority, 278 Conn. 692, 700 n.9, 900 A.2d 498 (2006).
By way of additional background, we note that nei-
ther party raised the question of whether a trial court’s
denial of a motion for a judgment of dismissal pursuant
to Practice Book § 15-8 is properly reviewable. On
March 22, 2019, this court sent the parties the following
notice: ‘‘The parties are hereby ordered to file, on or
before April 1, 2019, simultaneous supplemental briefs,
of no longer than 5 pages in length, limited to the follow-
ing issue: Whether the trial court’s denial of the defen-
dant[’s] motion for judgment of dismissal pursuant to
Practice Book § 15-8 is properly reviewable in light of
Supreme Court precedent. See, e.g., Rice v. Foley, 98
Conn. 372, 373, 119 A. 353 (1923) (‘The refusal of the
court to grant defendant’s motion for a nonsuit is not
appealable.’); Bennett v. Agricultural Ins. Co., 51 Conn.
504, 512 (1884) (‘The refusal of the court to grant the
motion for nonsuit, being matter committed to the dis-
cretion of the court, is not reviewable on application
of the defendant.’).’’ (Emphasis in original.) Thereafter,
the parties submitted supplemental briefs.
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 commit-
ted to the discretion of the court, is not reviewable on
application of the defendant. The practice in Connecti-
cut, unlike that of some other states, is regulated by
statute. [General Statutes (1875 Rev.) tit. 19, c. XIII,
§§ 3, 4.] This statute provides for a nonsuit, not when
all the evidence on both sides has been received, but
when the plaintiff on his part has submitted his evidence
and rested. If the court shall be of [the] opinion that a
prima facie case is not made out, the court may (not
must) grant a nonsuit. If granted the plaintiff has his
remedy; if refused the defendant has no remedy on that
account, but must go on with the trial and submit the
case to the jury, either on the plaintiff’s evidence alone,
if he chooses, or upon his own evidence as well . . . .’’
Similarly, in Rice, in an appeal following a trial to the
court, the court held that ‘‘[t]he refusal of the court to
grant defendant’s motion for a nonsuit is not appeal-
able.’’ Rice v. Foley, supra, 98 Conn. 373. Our research
has not revealed any authority that expressly under-
mines the reviewability holdings of Bennett, Rice, and
the numerous cases of their ilk.
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 Practice Book § 15-8 motions for a judgment
of dismissal for failure to make out a prima facie case.
See, e.g., Statewide Grievance Committee v. Burton,
299 Conn. 405, 417–18, 10 A.3d 507 (2011); Cadle Co.
v. Errato, 71 Conn. App. 447, 450–60, 802 A.2d 887, cert.
denied, 262 Conn. 918, 812 A.2d 861 (2002). Neverthe-
less, ‘‘[a]s an intermediate appellate court, we are bound
by Supreme Court precedent and are unable to modify
it . . . . [W]e are not at liberty to overrule or discard
the decisions of our Supreme Court but are bound by
them. . . . [I]t is not within our province to reevaluate
or replace those decisions.’’ (Internal quotation marks
omitted.) State v. Montanez, 185 Conn. App. 589, 605
n.5, 197 A.3d 959 (2018), cert. denied, 332 Conn. 907,
209 A.3d 643 (2019).
In the present case, on the basis of the foregoing,
we conclude that the court’s denial of the defendant’s
Practice Book § 15-8 motion to dismiss, and the timing
thereof, are not reviewable on appeal.
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 Prac-
tice Book § 15-8 motion to dismiss. We first address
the defendant’s claim that the court erred when it failed
to rule on the defendant’s § 15-8 motion to dismiss at
the close of the plaintiff’s case-in-chief. Specifically,
the defendant argues, without any specificity, that, by
deferring its decision until the close of evidence, the
court necessarily had its judgment clouded as to the
sufficiency of the plaintiff’s evidence presented in its
case-in-chief. This claim is unavailing.
We return to the language of Practice Book § 15-8:
‘‘If, on the trial of any issue of fact in a civil matter
tried to the court, the plaintiff has produced evidence
and rested, a defendant may move for judgment of dis-
missal, and the judicial authority may grant such
motion if the plaintiff has failed to make out a prima
facie case. The defendant may offer evidence in the
event the motion is not granted, without having
reserved the right to do so and to the same extent as
if the motion had not been made.’’ (Emphasis added.)
The defendant contends, without any citation to author-
ity or reference to particular language within § 15-8, that
the court erred by deferring its ruling on the defendant’s
motion to dismiss. The plaintiff argues in contrast, also
without reference to particular language within § 15-8,
that the court did not err in reserving its decision until
after the close of evidence because trial courts routinely
reserve decision under Practice Book § 15-8.
We pause to observe that the parties have pressed
for competing applications of Practice Book § 15-8 as
though the issue were one of first impression. It is not.
The issue of the timeliness of a court’s ruling after
the close of evidence on a motion for a judgment of
dismissal previously was considered by our Supreme
Court in Cormier v. Fugere, 185 Conn. 1, 440 A.2d 820
(1981). In that case, after unsuccessfully moving for a
judgment of dismissal pursuant to Practice Book (1978–
97) § 3027—the nearly identical predecessor to § 15-8—
after the plaintiffs had rested their case, in part on the
ground that the plaintiffs had failed to make out a prima
facie case, the defendants moved for a judgment of
dismissal for a second time, on the essentially identical
ground, after resting their case and without producing
any additional evidence. Id., 2. Upon reconsideration,
the trial court granted the second motion. Id. On appeal,
our Supreme Court stated: ‘‘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. Practice Book
§ 302 [1978–97]; General Statutes § 52-210; Bennett v.
Agricultural Ins. Co., [supra, 51 Conn. 512]; Stephen-
son, Conn. Civ. Proc. (2d Ed.) §§ 192e and 193b. In this
case, both the defendants’ filing of the second motion
for judgment of dismissal and the court’s granting of it
were untimely.’’ (Emphasis added.) Cormier v. Fugere,
supra, 2. Because none of the parties in Cormier raised
on appeal a claim related to the untimeliness of the
second motion or of the trial court’s ruling thereon, our
Supreme Court did not address the issue further. Id.,
2–3. Instead, our Supreme Court addressed on the mer-
its the trial court’s granting of the second motion, exam-
ined the record of the proceedings below, and found
that the plaintiffs had failed to produce evidence suffi-
cient to prove causation. Id., 3, 6–7. Thereupon, our
Supreme Court affirmed the trial court’s granting of the
second motion for a judgment of dismissal. Id., 7.
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 Practice Book § 15-8, we are again constrained by
the axiom that ‘‘[a]s an intermediate appellate court,
we are bound by Supreme Court precedent and are
unable to modify it . . . . [W]e are not at liberty to
overrule or discard the decisions of our Supreme Court
but are bound by them. . . . [I]t is not within our prov-
ince to reevaluate or replace those decisions.’’ (Internal
quotation marks omitted.) State v. Montanez, supra,
185 Conn. App. 605 n.5.
Accordingly, applying the principle set forth in Cor-
mier v. Fugere, supra, 185 Conn. 2, namely, that ‘‘[a]
motion for judgment of dismissal must be . . . decided
by the court . . . before the defendant produces evi-
dence,’’ we conclude, as an initial matter, that the court
acted in an untimely manner when it ruled on the defen-
dant’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 Practice Book
§ 15-8, is whether the plaintiff put forth sufficient evi-
dence that, if believed, would establish a prima facie
case, not whether the trier of fact believes it. . . . For
the court to grant the motion [for judgment of dismissal
pursuant to § 15-8], it must be of the opinion that the
plaintiff has failed to make out a prima facie case. In
testing the sufficiency of the evidence, the court com-
pares the evidence with the allegations of the complaint.
. . . In order to establish a prima facie case, the propo-
nent must submit evidence which, if credited, is suffi-
cient to establish the fact or facts which it is adduced
to prove. . . . [T]he evidence offered by the plaintiff
is to be taken as true and interpreted in the light most
favorable to [the plaintiff], and every reasonable infer-
ence is to be drawn in [the plaintiff’s] favor.’’ (Emphasis
omitted; internal quotation marks omitted.) In re Nata-
lie J., 148 Conn. App. 193, 204, 83 A.3d 1278, cert. denied,
311 Conn. 930, 86 A.3d 1056 (2014); see also Charter
Oak Lending Group, LLC v. August, 127 Conn. App.
428, 437, 14 A.3d 449 (‘‘relatively low standard’’ neces-
sary to withstand defendant’s § 15-8 motion to dismiss),
cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011). ‘‘Once
a case is ultimately presented to the factfinder for final
decision, [however,] an entirely different analysis is
applied. Rather than being required to take as true the
evidence offered by the plaintiff, the trier of fact can
disbelieve any evidence, even if uncontradicted. . . .
In addition, the trier of fact is no longer bound to inter-
pret the evidence in the light most favorable to the
plaintiff, or to draw every reasonable inference there-
from, for it is axiomatic that it is within the province of
the trier of facts to assess the credibility of witnesses.’’
(Citations omitted.) Berchtold v. Maggi, 191 Conn. 266,
272, 464 A.2d 1 (1983); see also Sonepar Distribution
New England, Inc. v. T & T Electrical Contractor’s,
Inc., 133 Conn. App. 752, 755, 37 A.3d 789 (2012) (‘‘We
agree that the preponderance of the evidence standard
is inapplicable to a motion to dismiss for failure to
make out a prima facie case, but conclude that the
court’s error in applying the preponderance standard
was harmless, as ultimately the court was the trier of
fact.’’).
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 sus-
tained his burden of proof, which is supported by evi-
dence 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 presented in the defendant’s case-
in-chief. In light of the foregoing, we are unpersuaded
by the defendant’s timeliness claim.
III
The defendant also claims, as a substantive matter,
that the court erred when it denied its motion to dismiss
made pursuant to Practice Book § 15-8. Distilled to its
essence, the defendant’s claim is one of pleading defi-
ciency, specifically, that, as part of the plaintiff’s prima
facie case for foreclosure, the plaintiff was required to
have pleaded that the original mortgagors, as the own-
ers of the equity of redemption, were the title owners
of the respective properties at the time the mortgages
were executed. The defendant argues that the plaintiff’s
failure to include such allegations in the operative com-
plaints resulted in a material variance between the
pleadings and the evidence presented and caused the
plaintiff to fall short of pleading and, therefore, proving
a prima facie case in each of the actions.9 This claim
also fails.
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 alle-
gation in a complaint that would have justified the grant-
ing 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.) Ser-
vice 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 instruc-
tive. 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 Practice Book § 15-8], for a judg-
ment of dismissal for failure of the plaintiffs to make
out a prima facie case. Thus, the defendants challenged
the sufficiency of the plaintiffs’ evidence rather than
the sufficiency of their pleading. Because the defen-
dants did not raise their argument concerning the suffi-
ciency of the plaintiffs’ pleading in the trial court and
have failed to demonstrate that they in any way were
prejudiced by the plaintiffs’ amended complaint, we
conclude that the defendants have waived this claim.’’
(Footnotes omitted.) Id., 636–37.
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 plain-
tiff’s operative pleadings by way of its Practice Book
§ 15-8 motion to dismiss for failure to make out a prima
facie case. Such use of § 15-8 is procedurally improper.
Because the defendant has not claimed, either in its
briefs or at oral argument to this court, that it was
unfairly surprised or prejudiced by a defect in the plain-
tiff’s operative complaints, we conclude that the defen-
dant has waived its claim on appeal challenging the
legal sufficiency thereof. Service Road Corp. v. Quinn,
supra, 241 Conn. 637.
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 guaranties 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 grant-
ors 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 Practice Book
§ 15-5 (a). We disagree and address these contentions
in turn.
The following standard of review and legal principles
are applicable to the defendant’s claim. ‘‘The interpre-
tive construction of the rules of practice is to be gov-
erned by the same principles as those regulating statu-
tory interpretation. . . . The interpretation and
application of a statute, and thus a Practice Book provi-
sion, 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, extratex-
tual 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 relation-
ship to existing [provisions] and common law principles
governing the same general subject matter . . . . We
recognize that terms [used] are to be assigned their
ordinary meaning, unless context dictates otherwise.
. . . Put differently, we follow the clear meaning of
unambiguous rules, because [a]lthough we are directed
to interpret liberally the rules of practice, that liberal
construction applies only to situations in which a strict
adherence to them [will] work surprise or injustice.’’
(Citations omitted; internal quotation marks omitted.)
Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586,
594–95, 181 A.3d 550 (2018).
We begin our analysis of the defendant’s claim by
turning to the text of Practice Book § 15-5 (a). Section
15-5 (a) provides: ‘‘Unless the judicial authority for
cause permits otherwise, the parties shall proceed with
the trial and argument in the following order: (1) The
plaintiff shall present a case-in-chief. (2) The defendant
may present a case-in-chief. (3) The plaintiff and the
defendant may present rebuttal evidence in successive
rebuttals, as required. The judicial authority for cause
may permit a party to present evidence not of a rebuttal
nature, and if the plaintiff is permitted to present further
evidence in chief, the defendant may respond with fur-
ther evidence in chief. (4) The plaintiff shall be entitled
to make the opening and final closing arguments. (5)
The defendant may make a single closing argument
following the opening argument of the plaintiff.’’
(Emphasis added.) In accordance with § 15-5 (a), ‘‘in
civil and family cases, a trial court may, for cause, elect
to accept legal briefs in lieu of oral closing arguments.’’
de Repentigny v. de Repentigny, 121 Conn. App. 451,
456, 995 A.2d 117 (2010). ‘‘[W]hen considering whether
there was cause for a court to [deviate from the proce-
dures] prescribed in Practice Book § 15-5 (a), we review
the decision of the court under the abuse of discretion
standard. . . . In reviewing claims that the trial court
abused its discretion, great weight is given to the trial
court’s decision and every reasonable presumption is
given in favor of its correctness. . . . We will reverse
the trial court’s ruling only if it could not reasonably
conclude as it did.’’ (Citation omitted; internal quotation
marks omitted.) Pan Handle Realty, LLC v. Olins, 140
Conn. App. 556, 563–64, 59 A.3d 842 (2013).
The defendant first contends that the court erred in
refusing to permit closing arguments. We reject this
contention because the record reflects that the defen-
dant’s counsel did not request to make a closing argu-
ment at the close of evidence, and there is no indication
that the court otherwise expressed any refusal to permit
closing arguments. While Practice Book § 15-5 (a) con-
fers the right to make a closing argument (subject to
the court’s power to depart from that procedure for
cause); Pan Handle Realty, LLC v. Olins, supra, 140
Conn. App. 563–64; a party has the option to forgo
making a closing argument in a civil matter. See Practice
Book § 15-5 (a) (4) (‘‘[t]he plaintiff shall be entitled to
make the opening and final closing arguments’’) and (5)
(‘‘[t]he defendant may make a single closing argument
following the opening argument of the plaintiff’’
[emphasis added]). Thus, in the absence of any state-
ment from the defendant’s counsel to the trial court
indicating that he wanted to make a closing argument,
we deem the defendant’s first contention to be waived.10
See Apple Salon v. Commissioner of Public Health, 132
Conn. App. 332, 334, 33 A.3d 755 (2011) (‘‘Waiver is the
intentional relinquishment or abandonment of a known
right or privilege. . . . Waiver does not have to be
express, but may consist of acts or conduct from which
waiver may be implied. . . . In other words, waiver
may be inferred from the circumstances if it is reason-
able to do so.’’ [Internal quotation marks omitted.]).
The defendant next contends that the court erred in
refusing to permit the parties to submit posttrial briefs
in violation of Practice Book § 15-5 (a). This contention
fails for two reasons. First, § 15-5 (a) is silent as to
posttrial briefs and creates no independent obligation
on the part of the trial court to permit their submission.
Second, the record reflects that the defendant’s counsel
requested the court’s permission to file posttrial briefs
only with respect to the Anthony Estates case,11 the
appeal as to which has been withdrawn. See footnote
2 of this opinion. Therefore, the defendant’s second
contention has been rendered moot as to Anthony
Estates and is deemed waived as to the four actions
pending on appeal. See Apple Salon v. Commissioner
of Public Health, supra, 132 Conn. App. 334.
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.
1
Although the joint appeal form identifies defendants Cell Phone Club,
Inc., City Streets, Inc., Millionair Club, Inc., and Outlaw Boxing Kats, Inc.,
as appellants (in addition to 500 North Avenue, LLC), such parties are not
mentioned in the ‘‘appellants’ brief,’’ nor is there any claim as to how they
have been aggrieved by the judgments of the trial court. The only reference
to such parties in each of the court’s memoranda of decision is that such
parties ‘‘are named in the first count as parties who may claim an interest
in the property.’’ In addition, in stating his appearance during oral argument
before this court, counsel for ‘‘the appellants’’ identified 500 North Avenue,
LLC, as the sole appellant. We deem, therefore, 500 North Avenue, LLC, to
be the only participating defendant in this appeal. In light of the foregoing,
and because these foreclosure actions involved numerous other defendants
that are not participating in this appeal, we refer to 500 North Avenue, LLC,
as ‘‘the defendant.’’
2
The trial court heard the following eight foreclosure actions: (1) Manuel
Moutinho, Trustee v. 3044 Main, LLC, Superior Court, judicial district of
Waterbury, Docket No. CV-XX-XXXXXXX-S (3044 Main); (2) Manuel Moutinho,
Trustee v. 500 North Avenue, LLC, Superior Court, judicial district of Water-
bury, Docket No. CV-XX-XXXXXXX-S (500 North Avenue); (3) Manuel Mou-
tinho, Trustee v. 1794 Barnum Avenue, Inc., Superior Court, judicial district
of Waterbury, Docket No. CV-XX-XXXXXXX-S (1794 Barnum Avenue I); (4)
Manuel Moutinho, Trustee v. 1794 Barnum Avenue, Inc., Superior Court,
judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S (1794 Barnum
Avenue II); (5) Manuel Moutinho, Trustee v. Red Buff Rita, Inc., Superior
Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S (Red Buff
Rita); (6) Manuel Moutinho, Trustee v. 2060 East Main Street, Inc., Superior
Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S (2060 East
Main Street); (7) Manuel Moutinho, Trustee v. Anthony Estates Developers,
LLC, Superior Court, judicial district of Waterbury, Docket No. CV-10-
6014003-S (Anthony Estates); and (8) Manuel Moutinho, Trustee v. D.A.
Black, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-
XX-XXXXXXX-S (D.A. Black).
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.
3
For ease of discussion, we address the defendant’s claims in a different
order than they appear in its appellate brief.
4
In its principal appellate brief, the defendant makes three additional
claims of error in connection with 2060 East Main Street, Anthony Estates,
D.A. Black, and Red Buff Rita. We decline to address the defendant’s claims
with respect to 2060 East Main Street, Anthony Estates, and D.A. Black
because the appeal as to those actions was withdrawn, and the defendant
concedes, in its reply brief to this court, that such claims are moot. With
respect to Red Buff Rita, the defendant claims that the court erred by
refusing to consider its memorandum of law in opposition to the plaintiff’s
motion for summary judgment on the ground that the memorandum was
untimely filed in violation of Practice Book § 17-45. The defendant has
effectively abandoned this claim, however, as it concedes, in its reply brief
to this court, that any claimed error was harmless. Therefore, we decline
to review it.
5
Prior to the commencement of trial, the court granted motions for sum-
mary judgment as to liability only filed by the plaintiff in 1794 Barnum
Avenue I, Red Buff Rita, and 2060 East Main Street. The court did not
restrict the plaintiff’s presentation of evidence with respect to those actions,
however, during the trial.
6
Although the July 3, 2013 judgments of strict foreclosure disposed of
only a part of the plaintiff’s actions, as the plaintiff’s claims of breach of
guarantee against Curcio were tried at a later date, the judgments are final,
appealable judgments, as they disposed of all claims brought against the
defendant. See Practice Book § 61-3 (‘‘[a] judgment disposing of only a part
of a complaint, counterclaim, or cross complaint is a final judgment if that
judgment disposes of all causes of action in that complaint, counterclaim,
or cross complaint brought by or against a particular party or parties’’).
7
Practice Book (1978–97) § 302 provided: ‘‘If, on the trial of any issue of
fact in a civil action tried to the court, the plaintiff has produced his evidence
and rested his cause, the defendant may move for judgment of dismissal,
and the court may grant such motion, if in its opinion the plaintiff has failed
to make out a prima facie case. The defendant may offer evidence in the
event the motion is not granted, without having reserved the right to do so
and to the same extent as if the motion had not been made.’’ The minor
differences between the revisions, which resulted from amendments effec-
tive January 1, 2009, have no bearing on our decision.
8
In Machado v. Taylor, supra, 326 Conn. 401–402, the court held, inter
alia, that the defendant waived a claim that the plaintiff failed to make out
a prima facie case by filing an untimely motion under Practice Book § 15-
8 following the close of evidence.
9
In opposition, the plaintiff argues, inter alia, that the defendant did not
raise this ground in support of its motion to dismiss before the trial court,
and, thus, the issue has been waived. Contrary to the plaintiff’s assertion,
however, the record demonstrates that, during trial, the defendant raised
the issue of whether the plaintiff pleaded and proved that the original
mortgagors were the owners of the mortgaged properties at the time that the
mortgages were executed. Specifically, during argument on the defendant’s
motion to dismiss, the defendant’s counsel argued that ‘‘the plaintiff failed
to make a prima facie case because the plaintiff did not plead and did not
prove that the mortgagor was the owner of the property at the time the loan
was made. Only an owner of property can give a mortgage in Connecticut
and the owner transfers title under the title theory in Connecticut. The
forms provided in the Practice Book for foreclosure of a mortgage include
the allegation that the party who made the loan was the owner of the
property. The forms provided in [Caron] on [F]oreclosures, which have been
cited many times [by] the [c]ourts, [provide] that the plaintiff [must] allege
that the mortgagor was the owner of the property. That was not alleged
and not proven. And, therefore, Your Honor, since they did not prove that
the owner of the property gave them a mortgage on the property all of the
cases should be dismissed.’’ In light of the foregoing, we disagree with the
plaintiff that the defendant failed to raise this claim before the trial court
as part of its motion to dismiss.
10
Notwithstanding our conclusion herein, we emphasize that, rather than
permitting the record to remain silent on the issue of closing arguments,
the better practice is for the trial court to make a clear record as to whether
counsel or any self-represented party wants to make a closing argument.
11
The following exchange occurred between counsel and the court:
‘‘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 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.