Argued
May 22, 2019
Procedural
History
Action
to foreclose a mortgage on certain of the named
defendant's real property, and for other relief, brought
to the Superior Court in the judicial district of Middlesex,
where the named defendant filed a counterclaim; thereafter,
the court, Aurigemma, J., granted the
plaintiff's motion for summary judgment as to liability
on the complaint and as to the counterclaim; subsequently,
the court denied the named defendant's motion to reargue
and for reconsideration; thereafter, the court,
Domnarski, J., rendered a judgment of
foreclosure by sale, from which the named defendant appealed
to this court; subsequently, the court, Aurigemma,
J., denied the named defendant's motion for
articulation; thereafter, this court granted the named
defendant's motion for review but denied the relief
requested therein. Reversed; further
proceedings.
Michael J. Habib, with whom was Thomas P. Will-cutts, for the
appellant (named defendant).
Benjamin T. Staskiewicz, for the appellee (plaintiff).
Jeffrey Gentes filed a brief for the Connecticut Fair Housing
Center as amicus curiae.
DiPentima, C. J., and Moll and Beach, Js.
OPINION
BEACH,
J.
The
defendant Sandra Frimel appeals from the judgment of
foreclosure by sale rendered in favor of the plaintiff,
Bayview Loan Servicing, LLC.[1] On appeal, the defendant claims
that the trial court erred in granting the plaintiff's
motion for summary judgment without the motion appearing on
the short calendar and without permitting oral argument on
the motion. We agree with the defendant and, accordingly,
reverse the judgment of the trial court.
The
following facts and procedural history are relevant to the
defendant's claim on appeal. The plaintiff filed this
action in February, 2011, seeking to foreclose a mortgage on
the defendant's property located at 158 Brainard Hill
Roadin Higganum. On December 23, 2013, the trial court,
Domnarski, J., granted the plaintiff's
motion for summary judgment as to liability only. On April
28, 2014, the court, Marcus, J., rendered a
judgment of foreclosure by sale. On August 18, 2014, Judge
Domnarski granted the defendant's motion to open the
judgment and vacated the judgment of foreclosure by sale. On
January 12, 2015, the plaintiff filed a motion for judgment
of strict foreclosure. On January 23, 2015, the defendant
filed an answer, a special defense, and a counterclaim.
On June
2, 2017, the plaintiff filed a motion for summary judgment as
to liability only on the complaint and as to the
defendant's special defense and counterclaim. On June 19,
2017, William B. Smith, trustee for Thomas P. Willcutts, the
defendant's former attorney, filed a letter informing the
court that Willcutts had been placed on interim suspension
from the practice of law and that the defendant had only
recently become aware of Willcutts' suspension. The
letter also asked that the court offer ‘‘any
appropriate forbearance or time in proceeding'' with
this matter.[2] At a scheduled hearing on the
plaintiff's motion for summary judgment on July 24, 2017,
the plaintiff's counsel indicated that although she was
ready to proceed with regard to the plaintiff's motion
for summary judgment, she would leave it to the court's
discretion in light of Willcutts' suspension and the
defendant's attempts to retain another
attorney.[3] The defendant then informed the court that
she was having a problem receiving her mail and that she had
very recently learned of Willcutts'
suspension.[4] In response, the court,
Aurigemma, J., stated that it
‘‘will consider this matter on or after August
[18, 2017]. If there's nothing filed by your attorney,
the court will grant the summary judgment. This case is six
years old. The court is not inclined to give any more time. I
think [August 18, 2017], is quite generous.'' Counsel
for the plaintiff then inquired whether the court would want
oral argument on August 18, 2017, or if it would consider the
case on the papers on that date. In response, the court
stated that ‘‘[i]f they file it and want
argument, they can request argument . . . on or before
[August 18, 2017]; otherwise, I will take it on the
papers.''
On
August 18, 2017, Attorney Michael J. Habib filed an
appearance on behalf of the defendant. On August 21, 2017,
Habib filed an objection to the plaintiff's motion for
summary judgment. The opposition indicated that oral argument
was requested.[5] On August 29, 2017, the court granted the
plaintiff's motion for summary judgment on the basis of
the parties' written submissions and without a hearing.
The court's decision stated: ‘‘Absent
opposition. The motion for summary judgment was filed in
June. It appeared on the calendar on [July 24, 2017]. At that
time the defendant's attorney was suspended from
practice. The court stated that it would not consider the
motion until August 18, 2017, thereby giving the defendant or
her attorney time to file something in opposition to the
motion for summary judgment. As of August 18, 2017, there was
nothing filed in opposition. The defendant's new attorney
filed a one page objection to the [motion for] summary
judgment on August 21, 2017, but filed no memorandum of law
and filed no evidence or affidavit in opposition to the
summary judgment motion. Given the age of this case and the
unfairness to the plaintiff, the court finds that the
defendant's conduct is motivated only by desire to delay
proceedings and, in the absence of anything substantive to
oppose the plaintiff's [motion for] summary judgment, the
same is granted.''
On
September 19, 2017, the defendant filed a motion to reargue
and for reconsideration, [6] contending that the court's order
granting the plaintiff's motion for summary judgment was
‘‘against applicable law in its failure to permit
the defendant to present her opposition to the
plaintiff's motion, by way of argument or otherwise, and
its failure to consider the same in granting the
plaintiff's motion.'' That same day, the
plaintiff filed an objection to the defendant's motion to
reargue and for reconsideration. On October 10, 2017, the
court denied the defendant's motion and sustained the
plaintiff's objection thereto. On December 18, 2017,
Judge Domnarski rendered a judgment of foreclosure by sale.
The defendant then filed the present appeal.
On
appeal, the defendant claims that the court erred in granting
the plaintiff's motion for summary judgment without the
motion appearing on the short calendar and without permitting
oral argument on the motion. The plaintiff counters that the
court acted within its discretion in scheduling the hearing
on its motion for summary judgment, setting deadlines for the
defendant's opposition to be filed and, ultimately,
granting the motion for summary judgment. We agree ...