Barclays Bank Del. v. Bamford

213 Conn.App. 1

277 A.3d 151

BARCLAYS BANK DELAWARE

v.Diana L. BAMFORD

AC 44056

Appellate Court of Connecticut.

Argued December 7, 2021

Officially released June 7, 2022

Pat Labbadia III, Clinton, for the appellant (defendant).

Jeanine M. Dumont, East Hartford, for the appellee (plaintiff).

Moll, Clark and DiPentima, Js.

DiPENTIMA, J.

In this debt collection action, the defendant, Diana L. Bamford, appeals from the judgment of the trial court, Suarez, J. , following a hearing in damages, awarding the plaintiff, Barclays Bank Delaware, monetary relief in the amount of $5661.81 plus costs of $436.20. On appeal, the defendant claims that the court: (1) abused its discretion in denying her motion to disqualify the Honorable Matthew E. Frechette, a judge of the Superior Court, and in ruling on her motions to reargue and reconsider that denial; (2) improperly granted the plaintiff's motion for default for failure to disclose a defense; and (3) improperly admitted certain documents containing hearsay statements into evidence at the hearing in damages. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On May 7, 2018, the plaintiff filed a two count complaint against the defendant, sounding in breach of contract and account stated. The complaint generally alleges that the defendant was indebted to the plaintiff in the sum of $5661.81 arising out of the use of a credit account issued by the plaintiff.

On June 25, 2018, the defendant filed a request to revise the complaint to allege whether "the alleged debt arose orally or as a result of a written document." On September 11, 2018, the plaintiff filed a motion for extension of time to object thereto, alleging that the defendant never had served her request to revise on the plaintiff. On the same date, the plaintiff also filed an objection to the defendant's request to revise. On September 20, 2018, the defendant moved for a judgment of nonsuit on the ground that the plaintiff failed to comply with the defendant's request to revise; the plaintiff filed an objection to the motion for judgment of nonsuit. On September 24, 2018, the court, Frechette, J. , sustained the plaintiff's objection to the defendant's request to revise.

On October 9, 2018, the defendant filed a motion for order seeking to disallow nunc pro tunc the plaintiff's filings relating to the defendant's request to revise and the motion for judgment of nonsuit, contending that the plaintiff never served those filings on her electronically. On that same date, the defendant's counsel filed a motion to reargue and/or reconsider the court's September 24, 2018 order, outlining for the first time that he had had prior dealings with Judge Frechette and his father. The defendant also requested oral argument on the plaintiff's objection to her motion for a judgment of nonsuit. In the request for argument, the defendant's counsel suggested that, "[d]ue to past dealings, the propriety of Judge Frechette's involvement in the undersigned's cases needs to be addressed."

On October 15 and 22, 2018, Judge Frechette denied the defendant's motion to reargue and the defendant's motion for order, respectively. In denying the motion to reargue, Judge Frechette referred to an earlier unrelated case in which the defendant's counsel filed a motion to "disqualify [Judge Frechette] based on the identical grounds referenced in [multiple paragraphs] of this motion." See Value Health Care Services, LLC v. PARCC Health Care, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-5033728-S (July 9, 2012). Judge Frechette noted "that the Presiding Judge Jonathan Silbert denied said motion, finding it to be ‘utterly without merit,’ " and that the motion to reargue had also been denied. Judge Frechette attached a copy of both decisions to his ruling and concluded that "[t]he issue concerning the disqualification of the undersigned has already been raised and litigated by defense counsel and found to be without merit." In denying the motion for order, Judge Frechette incorporated his order denying the motion to reargue. On November 5, 2018, the defendant moved for an extension of time to file a motion to reargue the court's order denying her prior motion to reargue regarding her request to revise. The plaintiff objected to the November 5, 2018 motion, and it was ultimately denied by the court, Suarez, J. , on February 28, 2019.

Meanwhile, on September 12, 2018, the plaintiff had filed a demand for disclosure of defense, pursuant to Practice Book § 13-19.¹ On October 18, 2018, the plaintiff filed a motion for default for failure to disclose a defense. On October 30, 2018, the defendant objected to the plaintiff's motion for default and moved for an extension of time to plead in response to the plaintiff's demand for disclosure of defense. On November 13, 2018, the defendant filed an objection to the plaintiff's motion for default, contending that the plaintiff's demand for disclosure of defense was improperly filed in the present case on the ground that it is not a case to which § 13-19 applies because it is not an action "upon [a] written contract." On November 14, 2018, the plaintiff replied to the defendant's objection and argued that § 13-19 applied because "[t]his was a revolving credit card account. Each time the defendant used the account, she signed for the charges or otherwise acknowledged the charges to the account. Therefore, each time she charged to this account, there was a writing which memorialized her agreement to pay for the charges she made to the account. To claim that this is not an action upon a written contract is unfounded and frivolous." On November 15, 2018, Judge Frechette granted the plaintiff's motion for default.

On November 19, 2018, the defendant filed a "notice that no action can be taken," indicating that she intended to file a motion to recuse Judge Frechette "from further proceedings in this matter, or in any other matters in which the [defendant's counsel] is involved in any capacity in order to avoid the appearance of impropriety." In response to the defendant's filing, the court, Suarez, J. , held a hearing on December 12, 2018, at which the defendant's counsel reiterated that he intended to file a motion to disqualify Judge Frechette. Judge Suarez stated that, with respect to the requirements to timely file a motion in accordance with Practice Book § 1-23, "if [the defendant's counsel takes] the position that Judge Frechette should be disqualified because he may have some kind of bias ... we have to address that issue immediately. Certainly [the defendant's counsel is] past ten days with ... respect to this case." Judge Suarez, then sitting as presiding judge for civil matters and administrative judge for the judicial district of Middlesex, and citing "an obligation to ... address any potential claim of bias against any judge that sits [in the judicial district of Middlesex]," ordered that, "if [the defendant] wish[ed] to have Judge Frechette recuse himself, [the court would] give [her] one week ... to file that motion."

On December 19, 2018, the defendant filed a verified motion to disqualify Judge Frechette on the ground of apparent impropriety. The claim of impropriety centered on a conversation between the defendant's counsel and Judge Frechette at an unspecified time between 1997 and 2007, while Judge Frechette (before he was appointed to the bench) was an attorney working with his father. Further, the defendant's counsel claimed that a lawsuit filed against him by Judge Frechette's father should bar Judge Frechette from being involved in any future proceedings with him.² The defendant's counsel also challenged the propriety of Judge Frechette's orders disposing of the defendant's request to revise in the present case.

Judge Suarez held a hearing on the defendant's motion to disqualify on January 2, 2019, and issued a memorandum of decision denying the motion on February 22, 2019. The memorandum of decision set forth three principal grounds for the denial. First, Judge Suarez reasoned that the motion to disqualify Judge Frechette was barred by collateral estoppel because Judge Silbert previously denied "the same motion, encompassing the same issues," filed by the defendant's counsel in Value Health Care Services, LLC v. PARCC Health Care, Inc ., supra, Superior Court, Docket No. CV-11-5033728-S. Second, Judge Suarez determined that the defendant's counsel "constructively waived" his right to file his motion to disqualify because "he failed to file his motion to disqualify within ten days of the case being called for trial or hearing," pursuant to Practice Book § 1-23, and, instead, waited "almost three months after Judge Frechette issued his first ruling." Third, Judge Suarez concluded that the motion failed "on the merits" because the defendant's counsel failed to provide any evidence from which one could reasonably question Judge Frechette's impartiality. The defendant then filed two subsequent motions to reargue and/or reconsider; the court denied the first motion and granted the second motion, but denied the relief requested therein.³

On February 19, 2020, the plaintiff filed a motion for judgment requesting that the court enter judgment in its favor in the amount of $5661.81 in damages, plus $436.20 in costs, on the basis of the court's prior default of the defendant for her failure to disclose a defense.⁴ On that same day, the court, Suarez, J. , held a hearing in damages at which the plaintiff called one of its employees, Michael Noonan, to testify as to the account statements involved in this matter. During the hearing, after the plaintiff's counsel inquired of Noonan, the account statements were offered as a full exhibit. The defendant objected thereto, on the basis of a lack of proper foundation to qualify as a business record pursuant to General Statutes § 52-180 and §...