Argued
November 15, 2018
Procedural
History
Actions
to foreclose mortgages on certain real properties, 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).
Sheldon, Keller and Moll, Js. [*]
OPINION
MOLL,
J.
The
only defendant participating in this appeal, 500 North
Avenue, LLC, [1] appeals from the judgments 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
claims[3] 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. Accordingly,
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 Developers, LLC, and D.A.
Black, Inc. (original mortgagors), executed, respectively,
promissory notes and mortgages securing those notes,
pertaining to certain parcels of commercial real property
located in Bridgeport, Mil-ford, and Stratford. Gus Curcio,
Sr., executed corresponding 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.
Consequently, during the period of 2009 to 2011, the
plaintiff commenced eight foreclosure actions, asserting
foreclosure 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 foreclosure 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 memoranda of
decision rendering a judgment of strict foreclosure in favor
of the plaintiff in each action. On September 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
necessary.
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 defendant
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 defendant'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 dismissal, 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 produced 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
plaintiff 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 neither 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 following
issue: Whether the trial court's denial of the
defendant['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 discretion 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 committed to
the discretion of the court, is not reviewable on application
of the defendant. The practice in Connecticut, 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
appealable.'' Rice v. Foley, supra, 98 Conn.
373. Our research has not revealed any authority that
expressly undermines 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). Nevertheless, ‘‘[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 ...