Webster Bank, N.A. v. Frasca

183 Conn.App. 249

192 A.3d 467

WEBSTER BANK, N.A.

v.Brian J. FRASCA et al.

AC 40307

Appellate Court of Connecticut.

Argued February 20, 2018

Officially released July 10, 2018

Andrew P. Barsom, Hartford, for the appellant (plaintiff).

Maryam Afif, with whom, on the brief, was Seth J. Arnowitz, Stamford, for the appellee (named defendant).

Alvord, Keller and Bishop, Js.

BISHOP, J.

The plaintiff, Webster Bank, N.A., appeals from the trial court's denial of its motion for a deficiency judgment following a judgment of strict foreclosure against the defendants Brian J. Frasca and Allison D. Brant.¹ On appeal, the plaintiff asserts three claims: (1) the court committed plain error by (a) failing to consider two valuations of the property found in the appraisal report of the plaintiff's expert witness, (b) imposing an incorrect burden of proof under General Statutes § 49–14,² and (c) making comments during the hearing that demonstrated judicial bias; (2) the court abused its discretion by erroneously relying on various exhibits submitted during the deficiency judgment hearing; and (3) the court abused its discretion by denying the plaintiff's motion for a protective order in response to the defendant's notice of deposition. We affirm the judgment of the trial court.

The following facts and procedural history, as set forth in the court's memorandum of decision, are relevant to our consideration of this appeal. "[The property, 83 East Middle Patent Road, Greenwich (property) ] is two acres of residential zoned property improved with a single family house built in 1750. The two acres are located within the boundaries ... of Stamford ... but for reasons not fully explained at the hearing, [the property] is entitled to receive a Greenwich ... address. Apparently, a number of properties located on East Middle Patent Road share that same distinction, being Stamford ... real property with deeds and documents recorded in the Stamford land records, but possessing a Greenwich ... address. The two defendants, then husband and wife ... executed an adjustable rate note to [the plaintiff] for $1,252,000 on January 19, 2006. That note was secured by a first mortgage on [the property] recorded on the Stamford land records in volume 8410 at page 239. A loan modification agreement dated February 24, 2011, was executed in which it was agreed as of March 1, 2011, that the principal balance due was $1,270,156.98....

"This current foreclosure action was returnable to the Superior Court, judicial district of Stamford–Norwalk at Stamford on October 7, 2014. The operative complaint was the May 14, 2015 amended complaint, which alleged nonpayment of the installment payments due on or about March 1, 2014....

"The plaintiff's May 7, 2015 motion for summary judgment as to the defendant was granted by the court, Mintz, J. , on July 13, 2015. The plaintiff's July 22, 2015 motion for summary judgment as to [Brant] was granted by the court ... on August 31, 2015. The plaintiff's March 30, 2015 motion for judgment of strict foreclosure was granted by the court ... on October 19, 2015.... On October 19, 2015, a judgment of strict foreclosure entered with a law day of December 8, 2015. The law day of December 8, 2015, passed. No appeal to the Appellate Court was filed. No stay of the judgment entered. No motion to open the judgment was filed. The defendants failed to redeem by their law day. Title [of the property] therefore passed to the plaintiff ....

"Immediately thereafter the plaintiff's instant motion for [a] deficiency judgment was filed on December 11, 2015. The motion was assigned to this court and the court conducted two days of evidentiary hearings on October 26, 2016 and March 1, 2017. At the conclusion of evidence each of the three parties represented by counsel furnished oral argument. Posthearing briefs were waived."

On April 4, 2017, the court, Hon. Kevin Tierney , judge trial referee, denied the plaintiff's motion for a deficiency judgment "because of the plaintiff's failure to establish the fair market value [of the property] by credible and accurate evidence ...." This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the plaintiff raises three unpreserved claims for which it seeks plain error review. First, the plaintiff contends that the court committed plain error by failing to consider two valuations of the property contained in its appraisal report. Second, the plaintiff argues that the court should not have imposed a preponderance of the evidence standard but, rather, should have used a probable cause standard in determining the plaintiff's burden of proof. Third, the plaintiff claims that comments made by the court about the plaintiff's motive for seeking a deficiency judgment and about Brant's family during the hearings reveal judicial bias.

It is well established that "[the plain error] doctrine, codified at Practice Book § 60–5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... Plain error is a doctrine that should be invoked sparingly.... Implicit in this very demanding standard is the notion ... that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review....

"An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernible on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable.... This determination clearly requires a review of the plain error claim presented in light of the record.

"Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application.... [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.... In State v. Fagan , [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed. 2d 236 (2007) ], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] ... unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Emphasis in original; internal quotation marks omitted.) Reville v. Reville , 312 Conn. 428, 467–69, 93 A.3d 1076 (2014). With these principles in mind, we address each of the plaintiff's claims of plain error in turn.

A

The plaintiff's first plain error claim is that the court failed, incorrectly, to consider "additional statements of value" contained in its appraisal report submitted at the hearing for a deficiency judgment. In support of this argument, the plaintiff contends that § 49–14"does not require demonstration of the fair market value of the property as of the date of vesting with absolute scientific certainty, but rather imposes a burden on the moving party to supply sufficient facts to permit the court to make its independent determination of value as mandated by statute." The plaintiff asserts that the alternative approaches to valuation set forth in the appraisal report it submitted in support of its motion supplemented its final statement of value and, in combination, the statements of value contained in the appraisal report amply satisfied its burden of proof at the deficiency hearing. In response, the defendant argues that because the court found the appraisal report not credible, there was "no reason for the court to consider any of the valuations allegedly contained therein." We agree with the defendant.

The following additional information is pertinent to this claim. The record reveals that the plaintiff sought a deficiency judgment against the defendants because at the time of the strict foreclosure judgment, the property was appraised at $750,000 and the plaintiff's debt was $1,425,498.13. As evidence of the property's value at the hearing on the motion for a deficiency judgment, the plaintiff submitted an appraisal from its expert witness, Allen Glucksman, a residential real estate appraiser. Glucksman conducted an appraisal of the property on December 23, 2015 (December, 2015 report), and concluded that the fair market value of the property was $725,000. The plaintiff's claim regarding "three separate and distinct statements of value" contained in the December, 2015 report refers to the appraiser's discussion of the sales comparison approach, which resulted in a valuation of the property at $725,000; the cost approach, which yielded a value of $846,421; and in the appendix to the appraisal report, a property field card which lists a 2014 appraisal value of $894,144. Glucksman's affidavit, also attached to the appraisal report, stated, "[i]t is my professional opinion to a reasonable degree of certainty that the value of the subject property in its present condition is $725,000."...