Seaside National Bank & Trust v. Lussier , 185 Conn. App. 498 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
SEASIDE NATIONAL BANK & TRUST
v. GERALD LUSSIER
(AC 39040)
Keller, Elgo and Beach, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant. After the plaintiff filed a motion for summary
judgment as to liability, the defendant filed a motion for a thirty day
extension of time to respond, which the trial court granted. On the day
of a hearing on the motion for summary judgment, the defendant filed
an objection, stating that he needed more time to conduct discovery,
and requested a continuance pursuant to the applicable rule of practice
(§ 17-47), claiming that he needed to depose the affiant on whose testi-
mony the plaintiff relied to support its summary judgment motion. The
trial court granted the defendant one week to respond to the plaintiff’s
motion for summary judgment, and three weeks later, the defendant
filed an affidavit in opposition. Subsequently, the trial court granted the
plaintiff’s motion for summary judgment as to liability, and also granted
the plaintiff’s motion for a protective order to prohibit the deposition
of the affiant. The plaintiff then moved for a judgment of strict foreclo-
sure, and on the day of that hearing, the defendant filed an objection,
claiming that he needed to depose the plaintiff’s affiant before the court
entered final judgment. The trial court overruled the defendant’s objec-
tion and rendered a judgment of strict foreclosure. On the defendant’s
appeal to this court, held:
1. The trial court properly granted the plaintiff’s motion for summary judg-
ment as to liability; the affidavit submitted by the defendant in opposition
to the motion for summary judgment recited a history of the course of
dealing and suggested amounts by which he reportedly believed he was
overcharged, but provided no evidence supporting the conclusion of
overcharge or showing the allegedly correct amount, the defendant
admitted in his affidavit that he stopped paying his mortgage in its
entirety, and evidence showing that the defendant believed that he was
not in default was not sufficient to create a genuine issue of fact regarding
liability in light of his admission that he stopped making payments and
the evidence submitted by the plaintiff showing that he defaulted under
the terms of his note.
2. The trial court did not abuse its discretion by denying the defendant the
opportunity to depose the plaintiff’s affiant; where, as here, the defen-
dant had an opportunity to conduct discovery but failed to take advan-
tage of that opportunity and requested more time, the issue is whether
the court’s action as to any requested continuance constituted an abuse
of discretion, and the court here, in denying the defendant’s requests
for further continuances, did not abuse its discretion and found that
because the defendant had over a year and a half to conduct discovery
and had not done so, he could not defeat the motion for summary
judgment by asserting that he needed an opportunity to conduct dis-
covery.
3. The defendant’s claim that the trial court abused its discretion in denying
his request for a continuance was unavailing; given that the defendant
had had over a year and a half to conduct discovery and had not done
so, that court did not abuse its discretion in granting the defendant only
one week to respond to the plaintiff’s motion for summary judgment,
and it did not abuse its discretion in overruling the defendant’s objection
to the plaintiff’s motion for a judgment of strict foreclosure, which was
predicated on the defendant’s stated need to depose the plaintiff’s affiant.
Argued May 17—officially released October 16, 2018
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 court, Aurigemma, J., granted
the plaintiff’s motion for summary judgment as to liabil-
ity only; thereafter, the court granted the plaintiff’s
motion for a judgment of strict foreclosure and ren-
dered judgment thereon, from which the defendant
appealed to this court. Affirmed.
Michael J. Habib, for the appellant (defendant).
Christopher J. Picard, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, Gerald Lussier, also known
as Gerald J. Lussier, appeals from the judgment of strict
foreclosure rendered in favor of the plaintiff, Seaside
National Bank & Trust. On appeal, the defendant claims
that the trial court (1) improperly granted the plaintiff’s
motion for summary judgment as to liability, (2) vio-
lated his constitutional right to procedural due process
by denying him the opportunity to depose the plaintiff’s
affiant upon whose testimony the court relied in render-
ing judgment, and (3) abused its discretion in denying
his request for a continuance pursuant to Practice Book
§ 17-47 and in granting the plaintiff’s motion for a pro-
tective order. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our discussion. The defendant executed an
adjustable rate note, dated July 16, 2009, in favor of
Taylor, Bean & Whitaker Mortgage Corporation (Taylor
Bean) in the principal amount of $318,131. To secure
the note, the defendant executed and delivered a mort-
gage to Mortgage Electronic Registration System, Inc.
(MERS), as nominee for Taylor Bean, on property
located at 9 Patterson Place in Old Saybrook, which
mortgage was duly recorded. The note was endorsed
twice, first by Taylor Bean to the plaintiff and second
by the plaintiff in blank. MERS assigned the mortgage
to the plaintiff; this assignment was recorded on April
2, 2015.
Following a dispute over the amount of monthly mort-
gage payments and the defendant’s decision to stop
making payments, the plaintiff commenced the underly-
ing foreclosure action on January 14, 2014. After unsuc-
cessful mediation, the plaintiff filed a motion for
summary judgment as to liability on July 17, 2015. The
defendant filed a motion for a thirty day extension of
time to respond to the motion. The court granted the
defendant’s motion and the motion for summary judg-
ment was marked ready for a hearing for August 31,
2015. On that day, the defendant filed an objection to
the plaintiff’s motion for summary judgment, stating
that he needed more time to conduct discovery. The
defendant also filed a request for a continuance pursu-
ant to Practice Book § 17-47, claiming that he needed
to depose the affiant upon whose testimony the plaintiff
was relying in support of its motion for summary judg-
ment. On the same day, the defendant’s counsel sent a
notice of deposition to the plaintiff. The plaintiff subse-
quently filed a motion for a protective order to prohibit
the deposition of the affiant, which the court granted
on October 5, 2015.
The court granted the defendant one week to respond
to the plaintiff’s motion for summary judgment. On Sep-
tember 21, 2015, the defendant responded by filing an
affidavit in opposition to the plaintiff’s motion for sum-
mary judgment. On September 25, 2015, the court
granted the plaintiff’s motion for summary judgment
as to liability. The plaintiff subsequently moved for a
judgment of strict foreclosure. On March 7, 2016, the
day of the hearing for the motion for a judgment of
strict foreclosure, the defendant filed an objection to
that motion, claiming that he needed to depose the
plaintiff’s affiant before the court entered final judg-
ment. After hearing argument, the court overruled the
defendant’s objection and rendered a judgment of strict
foreclosure. This appeal followed. Additional facts will
be set forth as necessary.
I
The defendant first claims that the court improperly
granted the motion for summary judgment as to liability.
Specifically, the defendant argues that there was a genu-
ine issue of material fact as to whether the defendant
had defaulted on his mortgage. We disagree.
‘‘Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary. . . . [I]n
seeking summary judgment, it is the movant who has
the burden of showing . . . the absence of any genuine
issue as to all the material facts [that], under applicable
principles of substantive law, entitle him to a judgment
as a matter of law. . . .
‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage,
have been satisfied. . . . Thus, a court may properly
grant summary judgment as to liability in a foreclosure
action if the complaint and supporting affidavits estab-
lish an undisputed prima facie case and the defendant
fails to assert any legally sufficient special defense. . . .
‘‘A party opposing summary judgment must provide
an evidentiary foundation to demonstrate the existence
of a genuine issue of material fact. . . . A party may
not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary
judgment. . . . In other words, [d]emonstrating a gen-
uine issue of material fact requires a showing of eviden-
tiary facts or substantial evidence outside the pleadings
from which material facts alleged in the pleadings can
be warrantably inferred. . . . A material fact is one
that will make a difference in the result of the case.
. . . To establish the existence of a [dispute as to a]
material fact, it is not enough for the party opposing
summary judgment merely to assert the existence of
a disputed issue. . . . Such assertions are insufficient
regardless of whether they are contained in a complaint
or a brief. . . . Further, unadmitted allegations in the
pleadings do not constitute proof of the existence of a
genuine issue as to any material fact . . . . The issue
must be one which the party opposing the motion is
entitled to litigate under [its] pleadings and the mere
existence of a factual dispute apart from the pleadings is
not enough to preclude summary judgment.’’ (Citations
omitted; internal quotation marks omitted.) Bank of
New York Mellon v. Horsey, 182 Conn. App. 417, 435–36,
190 A.3d 105 (2018).
In support of its motion for summary judgment, the
plaintiff submitted an affidavit stating that it was the
holder of the note prior to commencing the foreclosure
action against the defendant. The affidavit stated fur-
ther that the defendant ‘‘failed to make monthly mort-
gage payments as required by the loan documents since
the payment due July 1, 2013, and for each and every
month thereafter’’ and that the defendant was ‘‘in
default under the loan documents for failure to make
payments as required by the terms of the note and
mortgage.’’
The defendant filed an objection to the plaintiff’s
motion for summary judgment, stating that he intended
to file a memorandum of law in opposition to the motion
after he completed discovery, for which he needed more
time. The defendant did not subsequently file a memo-
randum, but rather filed an affidavit, in which he was
the affiant, in opposition to the plaintiff’s motion for
summary judgment. The affidavit recited in relevant
part that in January, 2012, the mortgage servicer (ser-
vicer) increased the amount of his monthly mortgage
payments, and attributed the increase to changes in
required escrow payments for taxes and insurance. The
affidavit stated further that the defendant paid the
increased amounts for more than a year, but he stopped
making payments because he didn’t believe that the
servicer properly could account for the increased
escrow amount. The defendant sought explanations
from the servicer, who did not satisfactorily respond.
The defendant stated in the affidavit that he then
stopped making what he believed to be overpayments.
He offered instead to pay the lower monthly amount
that he had paid in the past, but the servicer refused
to accept the lower amount.
The defendant presented evidence showing that he
disputed the calculation of his escrow payments, but
the defendant’s insistence in his affidavit that he did
not consider himself to be in default, even though he
stopped making payments, was not sufficient to create
a genuine issue of material fact as to his default under
the terms of the note and mortgage. There were no facts
in the affidavit tending to show the allegedly correct
amount, or, more critically, to show that he had paid the
correct amount. ‘‘A party opposing summary judgment
must provide an evidentiary foundation to demonstrate
the existence of a genuine issue of material fact. . . .
A party may not rely on mere speculation or conjecture
as to the true nature of the facts to overcome a motion
for summary judgment. . . . A material fact is one that
will make a difference in the result of the case.’’ (Cita-
tion omitted; internal quotation marks omitted.) Bank
of New York Mellon v. Horsey, supra, 182 Conn. App.
436; see also Fidelity Bank v. Krenisky, 72 Conn. App.
700, 715–16, 807 A.2d 968 (no genuine issue of material
fact despite timely payments for nine years but subse-
quent failure to make timely tax payments), cert.
denied, 262 Conn. 915, 811 A.2d 1291 (2002).
We carefully have reviewed the affidavit submitted by
the defendant in opposition to the motion for summary
judgment. It recites a history of the course of dealing
and, together with an attached copy of an email, sug-
gests amounts by which the defendant reportedly
believed he was overcharged. There is, however, no
evidence supporting the conclusion of overcharge, and
the defendant admitted in his affidavit that he stopped
paying his mortgage in its entirety. Evidence showing
that the defendant believed that he was not in default
was not sufficient to create a genuine issue of fact
regarding liability in light of his admission that he
stopped making payments and evidence submitted by
the plaintiff that he defaulted under the terms of the
note. Accordingly, we conclude that the court properly
granted the plaintiff’s motion for summary judgment.
II
The defendant next claims that the trial court violated
his constitutional right to procedural due process by
denying him the opportunity to depose the plaintiff’s
affiant upon whose testimony the court relied in render-
ing judgment.1 Specifically, the defendant argues that
a deposition of the plaintiff’s affiant was necessary to
rebut the facts tending to show that he was in default
and to rebut the presumption that the plaintiff was in
possession of the note at the time it commenced this
foreclosure action.2 We disagree.
The defendant’s due process claim presents an issue
of law over which our review is plenary. In re Sha-
quanna M., 61 Conn. App. 592, 600, 767 A.2d 155 (2001).
‘‘Our due process inquiry takes the form of a two part
analysis. [W]e must determine whether [the defendant]
was deprived of a protected interest, and, if so, what
process was [he] due. . . . The fundamental requisite
of due process of law is the opportunity to be heard.
. . . The hearing must be at a meaningful time and in
a meaningful manner. . . . [T]hese principles require
that a [party] have . . . an effective opportunity to
defend by confronting any adverse witnesses and by
presenting his own arguments and evidence orally.’’
(Citations omitted; internal quotation marks omitted.)
Pagan v. Carey Wiping Materials Corp., 144 Conn.
App. 413, 418–19, 73 A.3d 784, cert. denied, 310 Conn.
925, 77 A.3d 142 (2013). ‘‘Inquiry into whether particular
procedures are constitutionally mandated in a given
instance requires adherence to the principle that due
process is flexible and calls for such procedural protec-
tions as the particular situation demands. . . . There
is no per se rule that an evidentiary hearing is required
whenever a liberty [or property] interest may be
affected. Due process . . . is not a technical conception
with a fixed content unrelated to time, place and cir-
cumstances.’’ (Internal quotation marks omitted.) Id.,
418.
The defendant relies primarily on In re Shaquanna
M., supra, 61 Conn. App. 592, and RKG Management,
LLC v. Roswell Sedona Associates, Inc., 142 Conn. App.
366, 68 A.3d 1169 (2013), for the proposition that a
denial of the right to cross-examine the affiant who
signed the plaintiff’s affidavit in support of its motion
for summary judgment violated his right to due process.
His reliance is misplaced.
The facts of the cases relied on differ markedly from
those of the present case. In re Shaquanna M., supra,
61 Conn. App. 593–94, was a case in which the respon-
dent’s parental rights were terminated. During trial, the
lawyer serving as the attorney for the minor children
and as guardian ad litem died, and the replacement was
denied the opportunity to obtain and read a transcript
of prior testimony in the trial which he had not heard.
Id., 595–96. This court held that, in light of the constitu-
tional interest inherent in the parental relationship, the
denial of the continuance for the purpose of obtaining
the transcripts affected the ability to defend a constitu-
tionally protected right, and, following a Mathews v.
Eldridge3 analysis, held that the respondent’s right to
due process had been violated. Id., 608.
RKG Management, LLC v. Roswell Sedona Associ-
ates, Inc., supra, 142 Conn. App. 367, involved the fore-
closure of a mechanic’s lien. A witness for the plaintiff
testified at trial about the work done on the subject
premises but refused to return to court to be cross-
examined. Id., 370–71. Despite a request, the trial court
refused to strike the witness’ testimony and, rather,
relied on information provided by the errant witness.
Id., 376–77. On these facts, this court held that the
defendant’s constitutionally protected right to cross-
examination had been violated. Id., 378–79.
It is undoubtedly correct, then, that the denial of the
opportunity to cross-examine, as in RKG Management,
or the denial of the opportunity to prepare for trial, as
in In re Shaquanna M., may implicate constitutionally
protected rights. Where the party has such an opportu-
nity, but fails to take advantage of that opportunity, the
considerations are different.
Due process requires the opportunity to be heard;
where a party has the opportunity to pursue due process
but requests more time, the issue is whether the court’s
action as to any requested continuance constitutes an
abuse of discretion. State v. Bethea, 167 Conn. 80, 83–84,
355 A.2d 6 (1974); see also Glastonbury Coalition for
Sensible Growth v. Conservation Commission of Glas-
tonbury, Superior Court, judicial district of Hartford,
Docket No. CV-XX-XXXXXXX (Feb. 10, 2004); Spilke v.
Spilke, Superior Court, judicial district of New Haven,
Docket No. FA-00-0440636S (March 15, 2002); Practice
Book § 17-47 (‘‘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’’ [emphasis
added]).
As we previously recited, the court denied the defen-
dant’s requests for further continuances to depose the
affiant. The court’s entire ruling in its memorandum of
decision is: ‘‘Where, as in the present case, the defen-
dant has had over a year and a half to conduct discovery
and has done none, he cannot defeat a motion for sum-
mary judgment by asserting that he now needs an oppor-
tunity to conduct discovery.’’
III
The defendant’s final claim is that the trial court
abused its discretion in denying his Practice Book § 17-
47 request for continuance and in granting the plaintiff’s
motion for a protective order. Specifically, the defen-
dant argues that in denying his request the court focused
on ‘‘improper and irrelevant considerations,’’ such as
the time spent in mediation and the time granted to the
defendant after a previous motion for a continuance
he had filed under Practice Book § 17-45. Instead, the
defendant argues, the court should have specifically
addressed the ‘‘merits of [his] request’’ and considered
the importance of the discovery sought, namely, the
need to rebut the presumption that the plaintiff had
standing. The defendant essentially makes the same
arguments in support of his claim that the trial court
abused its discretion in granting the plaintiff’s motion
for a protective order. We are not persuaded.
‘‘In the absence of an abuse of discretion, a trial
court’s decision to deny a motion for continuance pur-
suant to Practice Book § 382 [now Practice Book § 17-
47] will not be interfered with by an appellate court.
. . . If a party opposing summary judgment has had
ample opportunity to procure the information neces-
sary to defeat the motion, a trial court properly may
deny a continuance. . . . Furthermore, [u]nder [Prac-
tice Book § 17-47], the opposing party must show by
affidavit precisely what facts are within the exclusive
knowledge of the [party to be deposed] and what steps
he has taken to attempt to acquire these facts.’’ (Cita-
tions omitted; internal quotation marks omitted.) Great
Country Bank v. Pastore, 241 Conn. 423, 437–38, 696
A.2d 1254 (1997).
After unsuccessful mediation and in response to the
plaintiff’s demand for a disclosure of defense, the defen-
dant, on May 20, 2015, filed a disclosure of defense
stating in relevant part that he ‘‘intend[ed] to challenge
the plaintiff’s alleged right and standing to foreclose
upon the subject mortgage in a manner that is consistent
with [our] Supreme Court’s holding in J.E. Robert Co.
v. Signature [Properties], LLC, 309 Conn. 307, [71 A.3d
492] (2013).’’4 The defendant also filed an answer that
same day. Nearly two months later, on July 17, 2015,
the plaintiff filed its motion for summary judgment. On
July 22, the defendant, pursuant to Practice Book (2015)
§ 17-45,5 filed a request for a continuance for thirty days,
which the trial court granted, continuing the hearing
for the motion to August 31. On August 31, the defendant
filed an objection to the motion for summary judgment,
along with his request for a continuance under Practice
Book § 17-47. The defendant’s objection stated simply
that he needed time to complete discovery necessary
to oppose the motion for summary judgment. Alterna-
tively, the objection asked that the trial court deny the
plaintiff’s motion pursuant to Practice Book § 17-47.6
At the conclusion of a colloquy with counsel, the court
extended a week in which to file ‘‘whatever you want
to file . . . .’’
The issue of whether a court has abused its discretion
in denying a continuance is not novel. In Great Country
Bank v. Pastore, supra, 241 Conn. 437–38, our Supreme
Court noted specifically that a trial court has the discre-
tion to deny a Practice Book § 17-47 request where the
proponent of the request has had ample opportunity to
procure the information necessary to contest a motion
for summary judgment. In Altfeter v. Naugatuck, 53
Conn. App. 791, 805–807, 732 A.2d 207 (1999), this court
concluded that the trial court did not abuse its discre-
tion in denying a continuance when the plaintiffs’
request for time to gather information to oppose a
motion for summary judgment was untimely and the
plaintiffs had known for more than three months that
they would need time to respond to the motion. The
court cited Plouffe v. New York, N.H. & H.R. Co.,160
Conn. 482, 490, 280 A.2d 359 (1971), as follows: ‘‘Where,
however, the party opposing summary judgment timely
presents his affidavit . . . stating reasons why he is
presently unable to proffer evidentiary affidavits he
directly and forthrightly invokes the trial court’s discre-
tion. Unless dilatory or lacking in merit, the motion
should be liberally treated. Exercising a sound discre-
tion 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.’’ (Internal quotation marks
omitted.) Altfeter v. Naugatuck, supra, 806. Similarly,
in Bank of America, N.A. v. Briarwood Connecticut,
LLC, 135 Conn. App. 670, 676–77, 43 A.3d 215 (2012),
this court upheld the trial court’s denial of a Practice
Book § 17-47 continuance because the defendant had
had more than two months to file an affidavit and obtain
a continuance. In the present case, the trial court
observed that the defendant had had since February,
2015, after the mediation terminated, to attempt dis-
covery.
As noted in the court’s September 25, 2015 memoran-
dum of decision, ‘‘the defendant has had over a year
and a half to conduct discovery and has done none
. . . .’’ Under these circumstances, the court did not
abuse its discretion in granting the defendant only one
week to respond to the plaintiff’s motion for summary
judgment after his Practice Book § 17-47 request. We
also conclude that the trial court did not abuse its dis-
cretion in overruling the defendant’s objection to the
motion for a judgment of strict foreclosure, which was
predicated on the defendant’s stated need to depose
the plaintiff’s affiant.7
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant claims a due process violation under both the fifth amend-
ment to the the United States constitution and article first, § 8, of the Con-
necticut constitution. Because the defendant does not supply a ‘‘state
constitutional analysis of [his] claim pursuant to State v. Geisler, 222 Conn.
672, 684–86, 610 A.2d 1225 (1992), we deem that claim abandoned and
analyze [his] . . . arguments under the requirements of the United States
constitution.’’ (Internal quotation marks omitted.) Pagan v. Carey Wiping
Materials Corp., 144 Conn. App. 413, 417 n.10, 73 A.3d 784, cert. denied,
310 Conn. 925, 77 A.3d 142 (2013).
2
‘‘[A] holder of a note is presumed to be the owner of the debt, and
unless the presumption is rebutted, may foreclose the mortgage . . . .’’
Countrywide Home Loans Servicing, LP v. Creed, 145 Conn. App. 38, 48,
75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).
3
See Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976). ‘‘The three factors to be considered are (1) the private interest that
will be affected by the state action, (2) the risk of an erroneous deprivation
of such interest, given the existing procedures, and the value of any addi-
tional or alternate procedural safeguards, and (3) the government’s interest,
including the fiscal and administrative burdens attendant to increased or
substitute procedural requirements.’’ In re Shaquanna M., supra, 61 Conn.
App. 606.
4
Although the defendant’s disclosure of defense states that ‘‘[t]he plaintiff
intends to challenge the plaintiff’s alleged right and standing’’; (emphasis
added); we understand this to be a typographical error and read it to mean
that the defendant intended to challenge the plaintiff’s standing.
5
Practice Book (2015) § 17-45 provided that ‘‘[a] motion for summary
judgment shall be supported by such documents as may be appropriate,
including but not limited to affidavits, certified transcripts of testimony
under oath, disclosures, written admissions and the like. The motion shall
be placed on the short calendar to be held not less than fifteen days following
the filing of the motion and the supporting materials, unless the judicial
authority otherwise directs. Any adverse party may, within ten days of the
filing of the motion with the court, file a request for extension of time to
respond to the motion. The clerk shall grant such request and cause the
motion to appear on the short calendar not less than thirty days from the
filing of the request. Any adverse party shall at least five days before the
date the motion is to be considered on the short calendar file opposing
affidavits and other available documentary evidence. Affidavits, and other
documentary proof not already a part of the file, shall be filed and served
as are pleadings.’’
6
Practice Book § 17-47 provides: ‘‘Should it appear from the affidavits of
a party opposing the motion that such party cannot, for reasons stated,
present 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.’’
7
The following exchange is pertinent to the trial court’s denial of the
defendant’s objection to the plaintiff’s motion for a judgment of strict fore-
closure:
‘‘[The Defendant’s Counsel]: The objection, Your Honor, is that we had
requested a deposition of the plaintiff’s affiant which it relied upon to seek
a judgment on liability with the court. When we set up that deposition, the
plaintiff filed a motion for protective order which was granted by the court.
‘‘Your Honor, we think the recent case cited from the Appellate Court in
which the Appellate Court overturned a judgment for foreclosure on the
basis that the defendant was denied the right to cross-examine a key witness
in the case, which we believe we have here, Your Honor. The plaintiff’s
affiant was necessary for its claim for judgment in this case and to enter a
final judgment without . . . having the opportunity to cross-examine, Your
Honor, we believe violates due process protections under both the federal
and state constitutions.
‘‘The Court: Well . . . there were eleven mediations here. There was no
trial. So there was no inability to cross-examine anyone. There was no
defense disclosed. Summary judgment was granted. So I’m going to have
to overrule your objection.’’