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Moutinho v. 500 North Avenue, LLC

Appellate Court of Connecticut

August 6, 2019

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.

         Argued November 15, 2018

          Superior Court in the judicial district of Waterbury, Complex Litigation Docket, Shaban, J.; Shaban, J.

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          Jonathan J. Klein, Bridgeport, with whom, on the brief, was Stephen R. Bellis, New Haven, for the appellant (defendant 500 North Avenue, LLC).

         James M. Nugent, with whom, on the brief, was James R. Winkel, Milford, for the appellee (plaintiff).

         Sheldon, Keller and Moll, Js.[*]

          OPINION

         MOLL, J.

Page 671

          [191 Conn.App. 610] The only defendant participating in this appeal, 500 North Avenue, LLC,[1] appeals from the judgments of strict foreclosure, rendered after a court trial, [191 Conn.App. 611] 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] [191 Conn.App. 612] With

Page 672

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, Milford, 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, [191 Conn.App. 613] 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 ...


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