Moutinho v. 500 N. Ave., LLC

• Decision Date: 06 August 2019
• Docket Number: AC 36115
• Citation: 216 A.3d 667,191 Conn.App. 608
• Court: Connecticut Court of Appeals
• Parties: 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.

191 Conn.App. 608

216 A.3d 667

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.

AC 36115

Appellate Court of Connecticut.

Argued November 15, 2018

Officially released August 6, 2019

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.^*

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 claims³ 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, 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, 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. at 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. at 373, 119 A. 353. Our research has not revealed any authority that expressly under-mines 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 the timing thereof, are not reviewable on appeal.

II

Notwithstanding the foregoing conclusion, which is not a subject matter...