Argued
September 24, 2019
Procedural
History
Action
to foreclose a mortgage on certain real property owned by the
defendant, and for other relief, brought to the Superior
Court in the judicial district of Middlesex, where the
defendant was defaulted for failure to plead; thereafter,
Bank of America, N.A., was cited in as a defendant and the
plaintiff filed an amended complaint; subsequently, AJX
Mortgage Trust I was substituted as the party plaintiff;
thereafter, the court, Aurigemma, J.,
granted the substitute plaintiff's motion for judgment as
to counts two through six of the amended complaint;
subsequently, the court granted the substitute
plaintiff's motion for a judgment of strict foreclosure
and rendered judgment thereon, from which the named defendant
appealed to this court, which reversed in part the trial
court's judgment and remanded the case for further
proceedings; thereafter, the substitute plaintiff withdrew
counts five and six of the amended complaint; subsequently,
the court, Aurigemma, J., denied the named
defendant's motion for an extension of time to file an
opposition to the substitute plaintiff's motion for
summary judgment as to liability only on count one of the
amended complaint; thereafter, the court, Aurigemma,
J., granted the substitute plaintiff's motion
for summary judgment, denied the named defendant's motion
to reargue and for reconsideration, and granted the
substitute plaintiff's motion for a judgment of strict
foreclosure and rendered judgment thereon, from which the
named defendant appealed to this court. Reversed;
further proceedings.
Thomas
P. Willcutts, with whom, on the brief, was Michael J. Habib,
for the appellant (named defendant).
Benjamin T. Staskiewicz, for the appellee (substitute
plaintiff).
Keller, Moll and Bishop, Js.
OPINION
MOLL,
J.
The
defendant, Daniel J. Scroggin also known as Daniel F.
Scroggin also known as Daniel Scroggin, appeals from the
judgment of strict foreclosure rendered by the trial court,
for the second time, in favor of the substitute plaintiff,
AJX Mortgage Trust I, a Delaware Trust, Wilmington Savings
Fund Society, FSB, Trustee.[1] The defendant makes the following
claims on appeal: (1) the trial court improperly failed to
recuse itself pursuant to General Statutes § 51-183c
following our remand in Chase Home Finance, LLC v.
Scroggin, 178 Conn.App. 727, 176 A.3d 1210 (2017)
(Chase I); (2) the trial court erred by granting the
plaintiff's motion for summary judgment as to liability
only without hearing oral argument on that motion; and (3)
the trial court erred in denying on timeliness grounds the
defendant's motion for an extension of time, filed
pursuant to Practice Book § 17-47, to respond to the
plaintiff's motion for summary judgment. We agree with
the defendant's second claim and, accordingly, reverse
the judgment of the trial court.[2]
We
begin with an abbreviated recitation of the factual and
procedural background of this dispute, as set forth by this
court in Chase I. ‘‘In December, 2009,
Chase commenced the present foreclosure action against the
defendant. In its original one count complaint, Chase
alleged, in relevant part, that on July 20, 2007, the
defendant executed a promissory note in the amount of $217,
500 in favor of Chase Bank USA, N.A., and that the loan was
secured by a mortgage of the premises located at 25 Church
Street in Portland, which was owned by and in the possession
of the defendant. Chase alleged that the mortgage was
recorded on the Portland land records, that the mortgage was
assigned to it, and that it was the holder of the note and
mortgage. Chase alleged that beginning on July 1, 2009, the
defendant failed to make installment payments of principal
and interest required by the note and that it had exercised
its option to declare the entire unpaid balance of the note
(in the amount of $214, 939.97) due and payable to it. . . .
By way of relief, Chase sought, among other things, a
foreclosure of the mortgage and the immediate possession of
the subject premises.
‘‘On
June 7, 2010, Chase filed a motion for default for failure to
plead. On that same day, Chase filed a motion for judgment of
strict foreclosure and a finding that it was entitled to
possession of the subject premises. On June 16, 2010, the
clerk of the court granted the motion for default but, at
that time, the court did not rule on the motion seeking a
judgment of strict foreclosure.
‘‘On
September 8, 2010, Chase filed a request for leave to amend
its complaint and attached a proposed amended complaint. The
defendant did not object. The amended complaint consisted of
six counts. The first count brought against the defendant
sought a foreclosure and generally was consistent with the
allegations brought against the defendant in the original one
count complaint . . . . The second, third, and fourth counts
of the amended complaint were brought against Bank of
America. . . . Counts five and six of the amended complaint,
both of which were directed at the defendant, [were] related
to Chase's allegations with respect to Bank of
America's mortgage interest in the subject property. . .
.
‘‘At
no time did the defendant move to set aside the default for
failure to plead entered on June 16, 2010. On November2,
2015, however, the defendant disclosed a defense, stating
that he ‘intend[ed] to challenge the plaintiff's
alleged right and standing to foreclose upon the subject
mortgage.' On the same day, the defendant filed an answer
to Chase's original complaint.
‘‘The
plaintiff did not file a motion for default for failure to
plead against the defendant with respect to the amended
complaint. On November 24, 2015, however, the plaintiff filed
a motion for judgment against the defendant with respect to
counts two, three, four, five, and six of the amended
complaint. On the same day, the plaintiff moved that the
court enter a judgment of strict foreclosure . . . .
‘‘On
April 4, 2016, the defendant filed an answer to the
plaintiff's amended complaint. In his answer to the
amended complaint, the defendant, among other things,
admitted portions of the allegations made in the first count
and, with respect to other portions of the first count, left
the plaintiff to its proof. Also, on April 4, 2016, the
defendant filed an objection to the plaintiff's motion
for judgment as to count six of the amended complaint and an
objection to the plaintiff's motion for judgment of
strict foreclosure. On that date, the court [Aurigemma,
J.] held a hearing on the plaintiff's motion for
judgment. By order dated April 4, 2016, the court granted the
plaintiff's motion for judgment with respect to counts
two, three, four, and five of the amended complaint, but did
not rule with respect to counts one or six of the amended
complaint.
‘‘Following
the hearing, the plaintiff replied to the defendant's
objection to its motion for judgment of strict foreclosure,
and the defendant filed a memorandum of law in which he
further articulated the reasons underlying his objection to
the motion for judgment of strict foreclosure. At a hearing
on April 18, 2016, the parties appeared and presented
additional arguments [before Judge Aurigemma]. . . .
‘‘The
court granted the plaintiff's motion for judgment of
strict foreclosure . . . and rendered judgment on count six
of the plaintiff's amended complaint in the
plaintiff's favor.'' (Footnotes omitted.)
Id., 730-37.
Thereafter,
the defendant appealed from the judgment of strict
foreclosure rendered on count one of the amended complaint.
Id., 737 n.9. On appeal, this court concluded that
‘‘[i]n light of the changes to the
plaintiff's case that were reflected in the amended
complaint, it was inequitable for the court not to have
considered the default entered in 2010 to have been
extinguished. Thus, the court should have considered the
defendant's answer to the amended complaint as well as
his disclosed defense. Although it was appropriate for the
court to have considered the lengthy period of time that
followed the entry of the default, it nonetheless abused its
discretion by failing to consider the effect of the amended
complaint upon that default.'' (Footnote omitted.)
Id., 745. Accordingly, this court reversed the
judgment of strict foreclosure and remanded the case for
additional proceedings. Id., 746.
On
March 26, 2018, following our remand, the plaintiff filed a
motion for summary judgment as to liability only on count one
of its amended complaint. The forty-five day period set forth
in Practice Book § 17-45 (b) for the filing of a
response to the motion for summary judgment expired on May
10, 2018. On May 24, 2018, the defendant filed a document
captioned ‘‘Practice Book § 17-47 Motion for
Extension of Time to Respond to the Plaintiff's Motion
for Summary Judgment, or Alternatively, Objection to Summary
Judgment.'' The trial court denied that motion as
untimely. At no time did the defendant file a substantive
response to the plaintiff's motion for summary judgment.
See Practice Book § 17-45 (b).
On May
29, 2018, the parties appeared before Judge Aurigemma at
short calendar on the plaintiff's motion for summary
judgment, which had been marked
‘‘ready.'' Counsel for the defendant
acknowledged that he had not filed a response to the motion.
Thereupon, the court ruled: ‘‘Well, there's
no opposition, so the motion's granted, absent
opposition.'' The defendant's counsel then stated
that, pursuant to § 51-183c, the trial court was
required to recuse itself. The court responded by asking
whether the defendant's counsel had filed a motion to
recuse, to which he indicated that he had not, and the
proceedings concluded. A subsequent motion to reargue filed
by the defendant was denied.
On June
21, 2018, the plaintiff filed a motion for a judgment of
strict foreclosure, and on July 9, 2018, the court granted
the motion. This appeal followed. Additional facts and
procedural background will be provided as necessary.
I
The
defendant first claims that, pursuant to § 51-183c,
Judge Aurigemma should have recused herself from ruling on
‘‘material issues'' following this
court's reversal of the judgment of strict foreclosure in
Chase I. The plaintiff counters that (1) recusal was
unwarranted in the absence of a written motion to disqualify
filed pursuant to Practice Book §§ 1-22
(a)[3]
and 1-23, [4] and (2) § 51-183c did not apply
because there was no ‘‘trial'' within the
meaning of the statute. We agree with the plaintiff's
second argument.[5]
We set
forth the applicable standard of review. The defendant's
claim that § 51-183c required recusal under the
circumstances of this case presents a question of statutory
interpretation, thereby invoking our plenary review. See
State v. Riley, 190 Conn.App. 1, 8, 209 A.3d
646, cert. denied, 333 Conn. 923, A.3d (2019).
‘‘The principles that govern statutory
construction are well established. When construing a statute,
[o]ur fundamental objective is to ascertain and give effect
to the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner, the
meaning of the statutory language as applied to the facts of
[the] case, including the question of whether the language
actually does apply. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to
consider the text of the statute itself and its relationship
to other statutes. If, after examining such text and
considering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the statute
shall not be considered. . . . When a statute is not plain
and unambiguous, we also look for interpretive guidance to
the legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same general
subject matter . . . .'' (Internal quotation marks
omitted.) Mickey v. Mickey, 292 Conn. 597, 613-14,
974 A.2d 641 (2009).
Section
51-183c provides: ‘‘No judge of any court who
tried a case without a jury in which a new trial is granted,
or in which the judgment is reversed by the Supreme Court,
may again try the case. No judge of any court who presided
over any jury trial, either in a civil or criminal case, in
which a new trial is granted, may again preside at the trial
of the case.''
Our
Supreme Court, as well as this court, have previously held
that § 51-183c applies exclusively to
‘‘trials'' and not to other types of
adversarial proceedings. See, e.g., State v.
Miranda, 260 Conn. 93, 131, 794 A.2d 506
(‘‘[§] 51-183c applies exclusively to
‘trials' ''), cert. denied, 537 U.S. 902,
123 S.Ct. 224, 154 L.Ed.2d 175 (2002); Lafayette Bank
& Trust Co. v. Szentkuti, 27 Conn.App. 15, 19-21,
603 A.2d 1215 (‘‘Section 51-183c unambiguously
applies exclusively to ‘trials,' as distinguished
from pretrial or short calendar matters. . . . The term
‘trial' was not intended to include either
pre-trial or short calendar proceedings.'' [Citations
omitted.]), cert. denied, 222 Conn. 901, 606 A.2d 1327
(1992). On the basis of the foregoing interpretation, our
appellate courts have repeatedly concluded that where the
adversarial proceeding at issue did not constitute a
‘‘trial, '' § 51-183c does not
require recusal. See, e.g., State v. Miranda, supra,
131-32 (sentencing hearing); Board of Education v. East
Haven Education Assn., 66 Conn.App. 202, 215-16, 784
A.2d 958 (2001) (arbitration proceedings); Lafayette Bank
& Trust Co. v. Szentkuti, supra, 16-17, 20-21
(property valuation hearing in foreclosure action).
Given
the well settled interpretation of § 51-183c, we
conclude that § 51-183c did not apply in the present
case so as to require Judge Aurigemma's recusal following
the reversal of the judgment of strict foreclosure in
Chase I because she had not presided over any
‘‘trial.'' Instead, the judgment of
strict foreclosure underlying Chase I was rendered
in the context of a short calendar proceeding, to which
§ 51-183c does not apply.
In
support of his claim that § 51-183c required Judge
Aurigemma's recusal following our remand in Chase
I, the defendant relies on Higgins v. Karp, 243
Conn. 495, 706 A.2d 1 (1998) (Higgins II), and
Gagne v. Vaccaro, 133 Conn.App. 431, 35 A.3d 380
(2012), rev'd on other grounds, 311 Conn. 649, 90 A.3d
196 (2014). Neither of these authorities supports the
defendant's position. We address them in turn.
First,
Higgins II was the product of extensive litigation,
culminating in two appeals to our Supreme Court, arising out
of a fatal airplane crash. Higgins II, supra, 243
Conn. 498-99. Initially, in a consolidated case, the trial
court denied the defendant's motions to set aside
defaults entered against him for failure to plead, and the
case proceeded to a trial on damages, wherein the jury
awarded significant damages, with judgments rendered
accordingly. Higgins v. Karp, 239 Conn. 802,
806-807, 687 A.2d 539 (1997) (Higgins I). In
Higgins I, our Supreme Court reversed the judgments,
concluding that the trial court abused its discretion by
denying the defendant's motions to set aside the
defaults. Id., 811. On remand, the trial court again
denied the defendant's motions to set aside the defaults.
Higgins II, supra, 500-502. In Higgins II,
the defendant appealed from, and our Supreme Court reversed,
the judgment of the trial court because, this time, the trial
court failed to consider additional relevant evidence. Id.,
509-10. In footnote 7 in Higgins II, our ...