GMAC Mortg., LLC v. Demelis

181 Conn.App. 101

186 A.3d 1210

GMAC MORTGAGE, LLC

v.Daniel DEMELIS, et al.

AC 39836

Appellate Court of Connecticut.

Argued on February 1, 2018

Officially released April 17, 2018

C. Michael Budlong, Hartford, with whom was Emily C. Thaller, for the appellant (defendant Courtney Demelis).

S. Bruce Fair, with whom, on the brief, was Victoria L. Forcella, for the appellee (substitute plaintiff).

Sheldon, Bright and Flynn, Js.

BRIGHT, J.

The defendant Courtney Demelis¹ appeals from the judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Ditech Financial, LLC (Ditech).² The defendant claims that the court abused its discretion by: (1) denying her motion to dismiss for the original plaintiff's failure to comply with an order of the court; (2) denying her motion to dismiss based on the original plaintiff's failure to prosecute the case with reasonable diligence; and (3) denying her postjudgment motion for articulation, reconsideration and/or reargument. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In January, 2011, the original plaintiff commenced this foreclosure action by writ, summons and complaint with a return date of February 8, 2011. The defendant appeared and requested participation in the court's foreclosure mediation program. The parties engaged in mediation until July 1, 2011, when the mediation was terminated as unsuccessful. Thereafter, the parties engaged in discovery, after which the original plaintiff moved for a judgment of strict foreclosure on March 12, 2012. The court held a hearing on the motion and, on April 2, 2012, rendered a judgment of foreclosure by sale. The defendant then filed three motions to open the judgment and extend the sale date, all of which were granted. Following the granting of the defendant's last motion to open, the court set the sale date for September 14, 2013.

Just prior to the sale date, on September 13, 2013, the defendant filed a petition for bankruptcy pursuant to title 11, chapter 13, of the United States Code, which caused the sale of the foreclosed property to be stayed. On March 10, 2014, the Bankruptcy Court dismissed the defendant's bankruptcy petition. Consequently, on April 4, 2014, the original plaintiff filed a motion requesting that the trial court open the judgment and reset the sale date for the foreclosed property. In its motion to open the judgment and set a new sale date, the original plaintiff informed the court that the defendant's bankruptcy petition had been dismissed on March 10, 2014. That motion was not heard by the court for more than two years.

Instead, on July 6, 2015, the court, sua sponte, issued an order pursuant to Practice Book § 14–3 requiring the original plaintiff to file an affidavit by August 6, 2015, stating the status of the defendant's bankruptcy petition and whether a motion for relief from stay had been filed. The court's order stated that "[c]ounsel for the plaintiff must file an affidavit by [August 6, 2015] .... Failure to comply with the above order within thirty (30) days hereof will result in dismissal pursuant to [Practice Book §] 14–3." The original plaintiff did not comply with the court's order. Neither the court nor the parties took any further action in the case until March 31, 2016, when the original plaintiff filed a motion to substitute Ditech as the party plaintiff, following the assignment of the subject note and mortgage to Ditech. The motion was unopposed, and the court granted it on April 18, 2016.

Thereafter, on September 22, 2016, the defendant filed a motion to dismiss the case on two grounds. First, the defendant claimed that the case should be dismissed pursuant to Practice Book § 14–3 due to the original plaintiff's lack of diligence in prosecuting the action. Second, she claimed that the case should be dismissed because the original plaintiff never complied with the court's July 6, 2015 order. According to the defendant, because that order stated that the case will be dismissed if the original plaintiff did not comply, the order was self-executing and dismissal was required. The court considered the defendant's motion to dismiss on October 17, 2016. At the same time, the court also considered, for the first time, the original plaintiff's April 4, 2014 motion to open judgment. The court denied the defendant's motion to dismiss, granted the original plaintiff's motion to open, and rendered a judgment of strict foreclosure. On November 7, 2016, the defendant filed a motion for articulation, reconsideration and/or reargument. The court denied the motion on November 8, 2016. This appeal followed.

Because the defendant, in each of her three claims, argues that the court abused its discretion, we begin by setting forth the standard of review. "In reviewing a claim that [the] discretion [of the trial court] has been abused, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness .... [T]he ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Faile v. Stratford , 177 Conn. App. 183, 201, 172 A.3d 206 (2017).

I

The defendant claims that the trial court abused its discretion when it denied her motion to dismiss based on the original plaintiff's failure to comply with the court's July 6, 2015 order, which required the original plaintiff to provide an affidavit regarding the defendant's bankruptcy petition by August 6, 2015. The defendant argues that because the order stated that a failure to comply with the order "will result in dismissal pursuant to [Practice Book §] 14–3," the order was self-executing, and the court's refusal to implement the order and dismiss the action was an abuse of discretion. We disagree.

First, the premise of the defendant's argument, that the court's order was self-executing, is incorrect. The July 6, 2015 order did not dismiss the case. It merely set forth the court's then-present intention to dismiss the case if the original plaintiff did not comply with its order. In the event of noncompliance, further action of the court was still required to render a judgment of dismissal.

The cases upon which the defendant relies are inapposite. In Mihalyak v. Mihalyak , 30 Conn. App. 516, 518, 620 A.2d 1327 (1993), the judgment of dissolution provided that "alimony will terminate upon the death of either party or upon the wife's remarriage or cohabitation." (Internal quotation marks omitted.) This court concluded that "[t]he alimony termination provision was automatic and self-executing" because it took effect upon the occurrence of a certain event, without further action of the court. Id., at 518, 522, 620 A.2d 1327. Accordingly, the court already had rendered a judgment , which this court determined was clear and unambiguous. Id., at 522, 620 A.2d 1327.

In Johnson v. Atlantic Health Services, P.C. , Superior Court, judicial district of New Haven, Docket No. CV–99–0430613–S, 2002 WL 1042180 (April 30, 2002), the trial court, Blue, J. , issued a contingent order granting the defendants' motion for judgment on the plaintiffs' stricken complaint, stating that the motion was "granted unless an amended complaint [was] filed by" a particular date.³ (Internal quotation marks omitted.) Id. After the deadline had passed, and with judgment never having entered in the case, the plaintiffs filed an amended complaint and the defendants objected. Approximately one year later, the trial court, Booth, J. , held that Judge Blue's order was self-executing, and, therefore, judgment had already entered in the defendants' favor. Id.

Then, for the first time, a judgment actually was entered in the case by the court clerk. Consequently, until Judge Booth's order sustaining the defendants' objection, Judge Blue's contingent order did not result in a final judgment rendered by the court or entered by the court clerk. Further action of the court, i.e., Judge Booth's order, was required in order for a final judgment to enter pursuant to Judge Blue's contingent order.

In the present case, as in Johnson , judgment was not entered by the court clerk after the original plaintiff failed to comply with the court's July 6, 2015 order. Further action of the court was required. Unlike in Johnson though, the court never rendered a judgment. Rather, it merely stated its intention to do so if the original plaintiff did not comply with its order. Actual dismissal of the case required the additional step of the court following through on its stated intention and rendering a judgment of dismissal. Contrary to the defendant's argument, the court was not required to follow through on its stated intention in its July 6, 2015 order. It retained the jurisdiction and discretion to decide not to impose the sanction of dismissal.

Second, the court's decision not to dismiss the case due to the original plaintiff's failure to comply with the court's July 6, 2015 order was not an abuse of discretion. Denying the defendant's motion to dismiss based on noncompliance with the court's July 6, 2015 order is consistent with the direction by our Supreme Court that the court's discretion should be exercised mindful of the policy preference "to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." Snow v. Calise , 174 Conn. 567, 574, 392 A.2d 440 (1978). In addition, the court's decision not to render a judgment of dismissal is supported by the facts that the original plaintiff actually had informed the court of the status of the defendant's bankruptcy in its April 4, 2014 motion to open, and that the defendant waited more than one year from the original plaintiff's failure to comply with July 6, 2015 order before filing her motion to dismiss.

Accordingly, the trial court did not abuse its discretion in denying the defendant's motion to...