Compass Bank v. Dunn ( 2020 )

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COMPASS BANK v. JEFFREY S. DUNN ET AL.
(AC 42026)
DiPentima, C. J., and Alvord and Flynn, Js
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendants J and D. Following its motion for judgment
of strict foreclosure, the plaintiff filed a demand for disclosure of defense
under the applicable rule of practice (§ 13-19). J and D timely responded
with a disclosure of defense. The trial court thereafter granted the
plaintiff’s motion for default for failure to disclose a ‘‘proper defense’’
as a means to delay the action and overruled J and D’s objection. The
court granted the plaintiff’s motion for judgment of strict foreclosure
and rendered judgment thereon, from which J and D appealed to this
court. Held that the trial court improperly granted the plaintiff’s motion
for default and, accordingly, the judgment of the trial court was reversed;
J and D properly complied with the requirements of § 13-19 by timely
disclosing their defense, stating their counsel’s belief that the defense
was bona fide and setting forth the nature or substance of the defense,
and the court made no findings as to the good faith and intentions of
the defendants’ counsel in filing the defense as required by Jennings
v. Parsons (71 Conn. 413).
Argued September 24, 2019—officially released February 25, 2020
Procedural History
Action to foreclose a mortgage on certain of the real
property of the named defendant et al., brought to the
Superior Court in the judicial district of Middletown,
where the court, Aurigemma, J., granted the plaintiff’s
motion for default for failure to disclose a defense;
thereafter, the court denied the motion of the named
defendant et al. to reargue and granted the motion of
the named defendant et al. for clarification; subse-
quently, the court, Domnarski, J., rendered judgment
of strict foreclosure, and the named defendant et al.
appealed to this court. Reversed; further proceedings.
David Lavery, with whom was Jeffrey Gentes, for
the appellants (named defendant et al.).
Christopher J. Picard, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. Practice Book § 13-19 is a rule not
often considered by either this court or the Supreme
Court. We examine it in this appeal, because the defen-
dants Jeffrey S. Dunn and Diane C. Dunn1 claim that,
despite their counsel’s compliance with § 13-19, the trial
court erroneously granted the motion for default for
failure to disclose a defense filed by the plaintiff, Com-
pass Bank. We agree with the defendants and reverse
the judgment of the trial court.
The record reveals the following procedural history.
These proceedings began with a foreclosure action on
March 30, 2017, when the summons and complaint were
served on the defendants. On June 28, 2017, the plaintiff
filed a motion for a default judgment against the defen-
dants for failing to appear. The motion for default, hav-
ing been granted, was set aside pursuant to Practice
Book § 17-20 (d) when the defendants filed appear-
ances. On August 18, 2017, the plaintiff filed a motion
for judgment of strict foreclosure. On August 30, 2017,
the defendants filed an answer. On October 4, 2017,
the plaintiff filed a demand for disclosure of defense,
pursuant to Practice Book § 13-19.2 The defendants
timely responded with a ‘‘Disclosure of Defense’’ on
October 11, 2017. In the disclosure, the defendants’
counsel stated that the ‘‘[p]laintiff has not shown that
it is the legal owner of the [n]ote with standing to
enforce the [n]ote through these proceedings. That the
[defendants have] no knowledge or information con-
cerning the material allegations of [p]aragraph 5 of the
[c]omplaint sufficient to form a belief, specifically, who
is the current, actual holder of the [n]ote and [m]ortgage
that are the subject of this action. The plea of ‘no knowl-
edge’ is in effect the same as pleading a denial; Newtown
Savings Bank v. Lawrence, 71 Conn. 358, 362, 41 A.
1054 (1899); and a denial is a defense.’’ On April 6, 2018,
the plaintiff filed a motion for default for failure to
disclose a defense on the basis that the defendants
failed to disclose a ‘‘proper defense’’ as a means to
delay the action. The defendants filed an objection to
the plaintiff’s motion on April 9, 2018. The trial court,
Aurigemma, J., granted the plaintiff’s motion for
default and overruled the defendants’ objection on April
23, 2018.
On May 10, 2018, the defendants filed both a motion
to reargue the motion for default for failure to disclose
a defense and a motion for clarification of the court’s
order. The court denied the motion to reargue on May
11, 2018. The court granted the motion for clarification
on May 29, 2018, stating that ‘‘[t]he defendants did not
interpose a valid defense to a foreclosure action.’’ After
determining that it was bound by the law of the case3
to adhere to Judge Aurigemma’s entry of default, the
court, Domnarski, J., granted the plaintiff’s motion for
judgment of strict foreclosure on July 30, 2018. This
appeal followed.
The sole issue on appeal is whether the court incor-
rectly granted a motion for default for failing to disclose
a defense on the ground that no ‘‘valid’’ defense was
asserted. Because the issue on appeal concerns the
interpretation of a rule of practice, our review is ple-
nary. See, e.g., Wells Fargo Bank, N.A. v. Treglia, 156
Conn. App. 1, 9, 111 A.3d 524 (2015). We apply the rules
of statutory interpretation when interpreting rules of
practice. See, e.g., Meadowbrook Center, Inc. v. Buch-
man, 328 Conn. 586, 594, 181 A.3d 550 (2018); id. (‘‘The
interpretive construction of the rules of practice is to
be governed by the same principles as those regulating
statutory interpretation. . . . In seeking to determine
[the] meaning [of a statute or a 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 unam-
biguous and does not yield absurd or unworkable
results, extratextual evidence . . . shall not be consid-
ered. . . . When [the provision] is not plain and unam-
biguous, we also look for interpretive guidance to the
. . . history and circumstances surrounding its enact-
ment, to the . . . policy it was designed to implement,
and to its relationship to existing [provisions] and com-
mon law principles governing the same general subject
matter . . . . We recognize that terms [used] are to be
assigned their ordinary meaning, unless context dic-
tates otherwise.’’ (Citations omitted; internal quotation
marks omitted.)).
Practice Book § 13-19 provides in relevant part: ‘‘In
any action to foreclose . . . in which there is an
appearance by an attorney for any defendant, the plain-
tiff may file and serve . . . a written demand that such
attorney present to the court, to become part of the
file in such case, a writing signed by the attorney stating
whether or not he or she has reason to believe and
does believe that there exists a bona fide defense to
the plaintiff’s action and whether such defense will be
made, together with a general statement of the nature
or substance of such defense . . . .’’ Failure to file a
responsive disclosure within ten days subjects the
defendant to a default and judgment thereon. See foot-
note 2 of this opinion. From as far back as 1890, the
rule focused on the conduct of the attorney in represent-
ing to the court the existence of a bona fide defense.
See Rules of Practice (1890) c. II, part IV, § 6, in 58
Conn. 561, 577 (1890).4
There are only two cases of precedential value that
address the issue before us. The seminal case interpre-
ting the rule is Jennings v. Parsons, 71 Conn. 413, 42
A. 76 (1899). In that case, the defendant, in his answer,
sought to set off the full amount of the plaintiff’s claim
for money owed on promissory notes with money that
the plaintiff owed him. Id., 413–14 (preliminary state-
ment of facts and procedural history). The plaintiff
moved to strike the answer and the trial court ordered
the defendant to make a disclosure of defense. Id., 414
(preliminary statement of facts and procedural history).
The defendant’s counsel then orally disclosed that the
defendant did not have a defense to the notes contained
within the complaint but that the defendant had a set off
action against the plaintiff. Id. (preliminary statement of
facts and procedural history). In making this disclosure,
the defendant’s counsel stated that he disclosed a
defense and that, in his opinion, it was a good defense.
Id. (preliminary statement of facts and procedural his-
tory). The trial court ruled in favor of the plaintiff on
the motion. Id. (preliminary statement of facts and pro-
cedural history). On appeal, our Supreme Court deter-
mined that, although ‘‘technically a set-off . . . is not
a defense, it is in effect one, either in whole or in part.’’
Id., 416. The court then examined the text of the rule
and stated that ‘‘[t]he express language of this rule gives
the court power to render judgment for the plaintiff
only in two contingencies: (1) if the attorney shall refuse
to disclose as required; or (2) if he shall not satisfy the
court that the defense will be made, or trial had.’’ Id.
The court found that the defendant had complied with
the rule by disclosing the defense and demonstrating
that the defense would be made at trial. Id. In reversing
the trial court, our Supreme Court explained that it was
improper for the trial court to find that, although the
defendant had complied with the rule, the defense was
not a legal one or available to the defendant. Id., 418.
It reasoned that the rule does not empower the court
to ‘‘pass upon the legal sufficiency of the proposed
defense and to render judgment in favor of the plaintiff,
if the court found the defense to be legally insufficient.’’
Id., 416. The court explained that ‘‘[o]ne of the purposes
of the rule is to enable the plaintiff, at an early stage
of the proceedings, to ascertain whether a defense is
claimed in good faith to exist, and is honestly intended
to be made, or whether it is a mere sham defense to
be interposed merely for delay. To this end it provides
a speedy, informal, and summary way of probing the
conscience of the counsel for the defendant with
respect to this matter . . . .’’ Id., 416–17. Accordingly,
‘‘[i]f [the defendant] has complied with the rule, that
is, has disclosed as required, and satisfied the court of
his belief and good faith and intention to make the
defense, then the truth or legal sufficiency of it should
be left to be tried and determined in the ordinary and
regular way.’’ Id., 417. The court clarified that if a dis-
closed defense is ‘‘clearly and palpably untruthful, or
irrelevant, or utterly frivolous, it would indicate bad
faith on the part of the counsel, and might warrant the
court in holding that it was not satisfied either the
attorney believed that a bona fide defense existed, or
that he intended to make it . . . .’’ Id., 418.
In this case, in clarifying its entry of default for failure
to disclose a defense, the court did not find that the
defendants had failed to comply with Practice Book
§ 13-19, but simply stated: ‘‘The defendant[s] did not
interpose a valid defense to a foreclosure action.’’ It
made no determinations as to the good faith and inten-
tions of the defendants’ counsel, as Jennings holds
it must.
The second case that offers guidance in resolving
this appeal is A.D.C. Contracting & Supply Corp. v.
Thomas J. Riordan, Inc., 176 Conn. 579, 409 A.2d 1027
(1979). In that case, the plaintiff filed a motion for
disclosure of defense. In response, the defendants filed
a disclosure alleging that there was a lack of privity
between the parties as a defense. Id., 579. The defen-
dants later agreed that a lack of privity was not a valid
defense to the action and that a default could enter.
Id. Subsequently, the defendants filed an untimely
motion to open the default judgment, which was denied.
On appeal, the defendants argued that the court erred
in ordering a default because it improperly examined
‘‘the truth or legal sufficiency’’ of the defense. Id., 580.
Our Supreme Court found no error because the court
entered default judgment against the defendants ‘‘not
because it questioned the legal sufficiency of the
defense but because the defendants agreed the defense
put forth was not a valid defense.’’ Id. As to the denial
of the motion to open the default, the court found no
abuse of discretion.5 Id., 581.
Unlike the defendants in A.D.C. Contracting & Sup-
ply Corp., the defendants here objected to the plaintiff’s
motion for default in which the plaintiff argued that
‘‘[a] challenge to standing does not create a defense to
a foreclosure action. Special defenses asserted by a
defendant must address the making, validity, or enforce-
ment of the note and/or mortgage in order to be valid
special defenses.’’ Accordingly, it argued, the disclosure
of defense was filed ‘‘as a means to delay this action.’’
There was no argument that the defense was untruthful,
frivolous or made in bad faith.
The court in Jennings instructs us that Practice Book
§ 13-19 should not be read to allow trial courts to ‘‘pass
on the legal sufficiency of the proposed defense.’’ Jen-
nings v. Parsons, supra, 71 Conn. 416. Thus, whether
a challenge to standing is a defense to a foreclosure
action is not at issue in a § 13-19 motion. Rather, the
purpose is ‘‘to enable the plaintiff, at an early stage of
the proceedings, to ascertain whether a defense is in
good faith claimed to exist, and is honestly intended
to be made, or whether it is a mere sham defense to
be interposed merely for delay.’’ Id., 416–17. The court
here simply stated that the defendants ‘‘did not inter-
pose a valid defense to a foreclosure action’’; it made
no findings as to the good faith of defense counsel in
making the defense or whether the defense was a ‘‘mere
sham’’ made merely for delay.
Accordingly, the defendants properly complied with
the requirements of Practice Book § 13-19 by timely
disclosing their defense, stating their counsel’s belief
that the defense was a bona fide one and setting forth
the ‘‘nature or substance of the defense.’’
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
There were other defendants named in the complaint but the only defen-
dants appearing in this appeal are Jeffrey S. Dunn and Diane C. Dunn. For
clarity, we will refer to Jeffrey S. Dunn and Diane C. Dunn as the defendants.
2
Practice Book §13-19 provides: ‘‘In any action to foreclose or to discharge
any mortgage or lien or to quiet title, or in any action upon any written
contract, in which there is an appearance by an attorney for any defendant,
the plaintiff may at any time file and serve in accordance with Sections 10-
12 through 10-17 a written demand that such attorney present to the court,
to become a part of the file in such case, a writing signed by the attorney
stating whether he or she has reason to believe and does believe that there
exists a bona fide defense to the plaintiff’s action and whether such defense
will be made, together with a general statement of the nature or substance
of such defense. If the defendant fails to disclose a defense within ten days
of the filing of such demand in any action to foreclose a mortgage or lien
or to quiet title, or in any action upon any written contract, the plaintiff
may file a written motion that a default be entered against the defendant
by reason of the failure of the defendant to disclose a defense. If no disclosure
of defense has been filed, the judicial authority may order judgment upon
default to be entered for the plaintiff at the time the motion is heard or
thereafter, provided that in either event a separate motion for such judgment
has been filed. The motions for default and for judgment upon default may
be served and filed simultaneously but shall be separate motions.’’
3
‘‘[The law of the case] doctrine refers to the binding effect of a court’s
prior ruling in the same case. Traditionally the doctrine held that until
reversed the ruling would bind the parties and could not again be contested
in that suit. . . . In essence it expresses the practice of judges generally
to refuse to reopen what has been decided and is not a limitation on their
power. . . . A judge should hesitate to change his own rulings in a case
and should be even more reluctant to overrule those of another judge.’’
(Citation omitted; internal quotation marks omitted.) Bowman v. Jack’s
Auto Sales, 54 Conn. App. 289, 292–93, 734 A.2d 1036 (1999).
4
In fact, until 1978, the rule contained the following language: ‘‘[A]nd if
such attorney shall intentionally or recklessly make a false statement with
a view to procure the continuance or postponement of an action, the court
may suspend him from practice as attorney in said court for such time as
it shall deem proper.’’ Practice Book (1963) § 176.
5
The majority of Superior Court judges who have addressed the issue of
the legal sufficiency of defenses in the context of Practice Book § 13-19
have relied on Jennings to decline to consider the legal sufficiency of the
disclosures. See, e.g., Banco Popular, North America v. Ren, Superior
Court, judicial district of Windham, Docket No. CV-XX-XXXXXXX-S (April 9,
2011); Geha v. Lake Road Trust, LLC, Superior Court, judicial district of
Windham, Docket No. CV-XX-XXXXXXX (May 25, 2004); Bank of America
Illinois v. Bogardus, Superior Court, Docket No. CV-XX-XXXXXXX-S (October
14, 1998); Norwich Savings Society v. Hunter, Superior Court, judicial
district of New London at Norwich, Docket No. 108808 (January 26, 1996);
Citicorp Mortgage, Inc. v. Skoronski, Superior Court, judicial district of
Hartford-New Britain at Hartford, Docket No. CV-XX-XXXXXXX-S (July 11,
1995); Dohn v. Simone, Superior Court, judicial district of Stamford-Norwalk
at Stamford, Docket No. CV-XX-XXXXXXX (July 20, 1993) (9 Conn. L. Rptr. 425).