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*********************************************** 
BAYVIEW LOAN SERVICING, LLC v. SANDRA

FRIMEL ET AL.

(AC 41213)

DiPentima, C. J., and Moll and Beach, Js.

Syllabus

The plaintiff company sought to foreclose a mortgage on certain real property owned by the defendant F. The plaintiff filed a motion for summary

judgment as to liability only on the complaint and as to F’s special

defenses and counterclaim. In July, 2017, at a scheduled hearing on the

plaintiff’s motion for summary judgment, the plaintiff’s counsel indicated

that although she was ready to proceed with regard to the motion for

summary judgment, she would leave it to the trial court’s discretion in

light of the suspension from the practice of law of F’s attorney and F’s

attempts to retain another attorney. During that hearing, the court noted

that it would consider the plaintiff’s motion on or after August 18, 2017,

but that it would grant the motion for summary judgment if F failed to

file an objection by that time. The court also noted that it would hear

oral argument on the merits of the motion for summary judgment if F

requested argument on or before August 18, 2017, but that it would

otherwise consider the matter on the papers. On August 21, 2017, F’s

new attorney, H, filed an objection to the plaintiff’s motion for summary

judgment, indicating that oral argument was requested, but the court

subsequently granted the plaintiff’s motion for summary judgment, without a hearing, on the basis of the parties’ written submissions. Thereafter,

the trial court rendered a judgment of foreclosure by sale, from which

F appealed to this court. Held that the trial court erred in granting the

plaintiff’s motion for summary judgment without the motion appearing

on the short calendar and without permitting oral argument on the

motion: although that court, in granting the plaintiff’s motion for summary judgment, cited F’s failure to file an opposition to the motion by

the deadline established by the court and treated F’s objection as

untimely and insufficient because it did not include a memorandum of

law, evidence, or an affidavit, the court was required to consider, in the

first instance, whether the plaintiff, as the movant, had satisfied its

burden of establishing its entitlement to summary judgment, and, if the

plaintiff had failed to meet its initial burden, it would not matter if F

had not filed any response; moreover, the trial court improperly granted

the plaintiff’s motion for summary judgment without hearing oral argument regarding the merits of that motion as required by the applicable

rule of practice (§ 11-18), as the court indicated during the July, 2017

hearing, which did not address the merits of the plaintiff’s motion, that

it would consider the motion on the papers unless F filed a request for

oral argument by August 18, 2017, H filed an objection to the plaintiff’s

motion for summary judgment with a request for oral argument on

August 21, 2017, and, notwithstanding those filings, the court granted

the plaintiff’s motion for summary judgment without hearing oral argument on the merits of that motion.

Argued May 22—officially released September 17, 2019

Procedural History

Action to foreclose a mortgage on certain of the

named defendant’s real property, and for other relief,

brought to the Superior Court in the judicial district of

Middlesex, where the named defendant filed a counterclaim; thereafter, the court, Aurigemma, J., granted the

plaintiff’s motion for summary judgment as to liability

on the complaint and as to the counterclaim; subsequently, the court denied the named defendant’s motion

to reargue and for reconsideration; thereafter, the court,

Domnarski, J., rendered a judgment of foreclosure by
sale, from which the named defendant appealed to this

court; subsequently, the court, Aurigemma, J., denied

the named defendant’s motion for articulation; thereafter, this court granted the named defendant’s motion

for review but denied the relief requested therein.

Reversed; further proceedings.

Michael J. Habib, with whom was Thomas P. Willcutts, for the appellant (named defendant).

Benjamin T. Staskiewicz, for the appellee (plaintiff).

Jeffrey Gentes filed a brief for the Connecticut Fair

Housing Center as amicus curiae.
Opinion

BEACH, J. The defendant Sandra Frimel appeals from

the judgment of foreclosure by sale rendered in favor

of the plaintiff, Bayview Loan Servicing, LLC.1 On

appeal, the defendant claims that the trial court erred

in granting the plaintiff’s motion for summary judgment

without the motion appearing on the short calendar

and without permitting oral argument on the motion.

We agree with the defendant and, accordingly, reverse

the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s claim on appeal. The plaintiff

filed this action in February, 2011, seeking to foreclose

a mortgage on the defendant’s property located at 158

Brainard Hill Road in Higganum. On December 23, 2013,

the trial court, Domnarski, J., granted the plaintiff’s

motion for summary judgment as to liability only. On

April 28, 2014, the court, Marcus, J., rendered a judgment of foreclosure by sale. On August 18, 2014, Judge

Domnarski granted the defendant’s motion to open the

judgment and vacated the judgment of foreclosure by

sale. On January 12, 2015, the plaintiff filed a motion

for judgment of strict foreclosure. On January 23, 2015,

the defendant filed an answer, a special defense, and

a counterclaim.

On June 2, 2017, the plaintiff filed a motion for summary judgment as to liability only on the complaint and

as to the defendant’s special defense and counterclaim.

On June 19, 2017, William B. Smith, trustee for Thomas

P. Willcutts, the defendant’s former attorney, filed a

letter informing the court that Willcutts had been placed

on interim suspension from the practice of law and

that the defendant had only recently become aware of

Willcutts’ suspension. The letter also asked that the

court offer ‘‘any appropriate forbearance or time in

proceeding’’ with this matter.2 At a scheduled hearing

on the plaintiff’s motion for summary judgment on July

24, 2017, the plaintiff’s counsel indicated that although

she was ready to proceed with regard to the plaintiff’s

motion for summary judgment, she would leave it to

the court’s discretion in light of Willcutts’ suspension

and the defendant’s attempts to retain another attorney.3 The defendant then informed the court that she

was having a problem receiving her mail and that she

had very recently learned of Willcutts’ suspension.4

In

response, the court, Aurigemma, J., stated that it ‘‘will

consider this matter on or after August [18, 2017]. If

there’s nothing filed by your attorney, the court will

grant the summary judgment. This case is six years old.

The court is not inclined to give any more time. I think

[August 18, 2017], is quite generous.’’ Counsel for the

plaintiff then inquired whether the court would want

oral argument on August 18, 2017, or if it would consider

the case on the papers on that date. In response, the

court stated that ‘‘[i]f they file it and want argument,
they can request argument . . . on or before [August

18, 2017]; otherwise, I will take it on the papers.’’

On August 18, 2017, Attorney Michael J. Habib filed

an appearance on behalf of the defendant. On August

21, 2017, Habib filed an objection to the plaintiff’s

motion for summary judgment. The opposition indicated that oral argument was requested.5 On August

29, 2017, the court granted the plaintiff’s motion for

summary judgment on the basis of the parties’ written

submissions and without a hearing. The court’s decision

stated: ‘‘Absent opposition. The motion for summary

judgment was filed in June. It appeared on the calendar

on [July 24, 2017]. At that time the defendant’s attorney

was suspended from practice. The court stated that it

would not consider the motion until August 18, 2017,

thereby giving the defendant or her attorney time to

file something in opposition to the motion for summary

judgment. As of August 18, 2017, there was nothing filed

in opposition. The defendant’s new attorney filed a one

page objection to the [motion for] summary judgment

on August 21, 2017, but filed no memorandum of law

and filed no evidence or affidavit in opposition to the

summary judgment motion. Given the age of this case

and the unfairness to the plaintiff, the court finds that

the defendant’s conduct is motivated only by desire

to delay proceedings and, in the absence of anything

substantive to oppose the plaintiff’s [motion for] summary judgment, the same is granted.’’

On September 19, 2017, the defendant filed a motion

to reargue and for reconsideration,6 contending that the

court’s order granting the plaintiff’s motion for summary judgment was ‘‘against applicable law in its failure

to permit the defendant to present her opposition to

the plaintiff’s motion, by way of argument or otherwise,

and its failure to consider the same in granting the

plaintiff’s motion.’’ That same day, the plaintiff filed an

objection to the defendant’s motion to reargue and for

reconsideration. On October 10, 2017, the court denied

the defendant’s motion and sustained the plaintiff’s

objection thereto. On December 18, 2017, Judge Domnarski rendered a judgment of foreclosure by sale. The

defendant then filed the present appeal.

On appeal, the defendant claims that the court erred

in granting the plaintiff’s motion for summary judgment

without the motion appearing on the short calendar

and without permitting oral argument on the motion.

The plaintiff counters that the court acted within its

discretion in scheduling the hearing on its motion for

summary judgment, setting deadlines for the defendant’s opposition to be filed and, ultimately, granting

the motion for summary judgment. We agree with the

defendant and conclude, for two reasons, that the court

erred in granting the plaintiff’s motion for summary

judgment.

‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

A party moving for summary judgment is held to a strict

standard. . . . To satisfy [its] burden the movant must

make a showing that it is quite clear what the truth is,

and that excludes any real doubt as to the existence of

any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be

viewed in the light most favorable to the opponent. . . .

When documents submitted in support of a motion for

summary judgment fail to establish that there is no

genuine issue of material fact, the nonmoving party

has no obligation to submit documents establishing

the existence of such an issue. . . . Once the moving

party has met its burden, however, the opposing party

must present evidence that demonstrates the existence

of some disputed factual issue.’’ (Emphasis in original; internal quotation marks omitted.) Capasso v.

Christmann, 163 Conn. App. 248, 257, 135 A.3d 733

(2016). ‘‘Our review of the trial court’s decision to grant

[a] motion for summary judgment is plenary.’’ (Internal

quotation marks omitted.) Marinos v. Poirot, 308 Conn.

706, 712, 66 A.3d 860 (2013).

We initially note that the trial court, in granting the

plaintiff’s motion for summary judgment, cited the

defendant’s failure to file an opposition to the motion

by the deadline established by the court. In Capasso v.

Christmann, supra, 163 Conn. App. 250, the plaintiffs

claimed that the trial court improperly rendered summary judgment in favor of the defendants ‘‘on the basis

that the plaintiffs’ counsel [had] failed to file an adequate opposition to the defendants’ motion.’’ We noted

that the trial court in that case ‘‘failed to address or

consider whether the defendants had met their burden

of establishing that they were entitled to summary judgment. The court instead rendered judgment in favor

of the defendants because the plaintiffs’ counsel had

submitted an inadequate brief. Specifically, the court

stated: ‘The motion for summary judgment now before

the court is granted for the failure of its counseled

opponents to submit an adequate brief following specific instructions to do so.’ In other words, the court

effectively sanctioned the plaintiffs for failing to comply

with its prior order.’’ Id., 260.

In concluding that the trial court in Capasso improperly rendered summary judgment in favor of the defendants, we stated: ‘‘Under these facts and circumstances,

it was improper to grant summary judgment solely

because the court determined that the opposition to

the defendants’ motion was inadequate. . . . Under

our jurisprudence, the court was required to consider,

in the first instance, whether the defendants, as the

movants, had satisfied their burden of establishing their

entitlement to summary judgment. If, and only if that
burden was met, would the court have considered the

plaintiffs’ memoranda in opposition and supporting evidentiary submissions to determine if they raised genuine issues as to any facts material to the defendants’

right to judgment in their favor. If the defendants had

failed to meet their initial burden, it would not matter

if the plaintiffs had not filed any response. . . . Summary judgment could not be rendered if the defendants

failed to establish that there was no genuine issue as

to any material fact.’’ (Citations omitted; emphasis in

original.) Id., 260–61.

As in Capasso, the court’s order in the present case

failed to consider whether the plaintiff had met its burden of establishing that it was entitled to summary

judgment. Instead, the order noted that it was being

issued ‘‘[a]bsent opposition’’ and that, although the

court had given the defendant until August 18, 2017, to

file an opposition to the motion for summary judgment,

nothing had been filed by that date. The order further

noted that Habib had filed a one page objection to the

motion for summary judgment on August 21, 2017, but

‘‘filed no memorandum of law and filed no evidence or

affidavit in opposition to the summary judgment

motion.’’7

The court appears to have treated the defendant’s

objection as untimely and insufficient because it did

not include a memorandum of law, evidence, or an

affidavit. In this regard, the plaintiff argues, in part, that

the trial court properly granted its motion for summary

judgment because the defendant had not filed an opposition to the motion within forty-five days of the filing

of the motion pursuant to Practice Book § 17-45 (b).8

As we stated in Capasso, however, the court was

required to consider, in the first instance, whether the

plaintiff, as the movant, had satisfied its burden of establishing its entitlement to summary judgment. If the

plaintiff had failed to meet its initial burden, it would

not matter if the defendant had not filed any response.

Capasso v. Christmann, supra, 163 Conn. App. 261.

Additionally, the court granted the plaintiff’s motion

for summary judgment in the absence of oral argument

on the motion. As stated previously in this opinion, at

the hearing on July 24, 2017, the court indicated that

it would consider the matter on or after August 18,

2017, and that if the defendant had not filed anything

by that date, it would grant the plaintiff’s motion. In

response to an inquiry by counsel for the plaintiff, the

court stated that the defendant could file a request for

oral argument by August 18, 2017; otherwise, the court

would consider the motion on the papers.9 Habib filed

an appearance for the defendant on August 18, 2017,

and an objection to the plaintiff’s motion for summary

judgment on August 21, 2017. The objection indicated

that oral argument was requested. Notwithstanding

these filings, on August 29, 2017, the court granted the
plaintiff’s motion for summary judgment without hearing oral argument on the merits of the plaintiff’s motion.

Practice Book § 11-18 provides in relevant part: ‘‘(a)

Oral argument is at the discretion of the judicial authority except as to . . . motions for summary judgment

. . . and/or hearing on any objections thereto. For

those motions, oral argument shall be a matter of right,

provided: (1) the motion has been marked ready in

accordance with the procedure that appears on the

short calendar on which the motion appears, or (2) a

nonmoving party files and serves on all other parties

. . . a written notice stating the party’s intention to

argue the motion or present testimony. Such a notice

shall be filed on or before the third day before the date

of the short calendar date . . . .’’ ‘‘Parties are entitled

to argue a motion for summary judgment as of right.’’

Singhaviroj v. Board of Education, 124 Conn. App. 228,

236, 4 A.3d 851 (2010).

The plaintiff argues that the court properly scheduled

this matter for the July 24, 2017 short calendar and that

it properly marked this motion ‘‘Ready’’ in accordance

with Practice Book § 17-45 (c).10 (Internal quotation

marks omitted.) At the hearing on July 24, 2017, however, the parties did not argue the merits of the motion

for summary judgment. Counsel for the plaintiff conceded, at oral argument before this court, that the trial

court did not address the merits of the plaintiff’s motion,

either at the hearing on July 24, 2017, or in its order

granting the motion. Pursuant to Practice Book § 11-

18, the defendant had a right to oral argument on the

plaintiff’s motion for summary judgment. See Curry v.

Allan S. Goodman, Inc., 95 Conn. App. 147, 151–54,

895 A.2d 266 (2006) (trial court improperly rendered

summary judgment in favor of defendant without oral

argument where defendant had requested argument and

parties anticipated argument on motion); see also Singhaviroj v. Board of Education, supra, 124 Conn. App.

237 (concluding that parties should be given opportunity to argue merits of claims at issue where transcript

reveals that argument commenced on motions for summary judgment but no substantive discussion followed).

The trial court, therefore, improperly granted the plaintiff’s motion for summary judgment without hearing

oral argument regarding the merits of that motion.11

The judgment is reversed and the case is remanded

for further proceedings.

In this opinion the other judges concurred.

1 Geoffrey Hammerson and JPMorgan Chase Bank, N.A., also were named

as defendants in this action. On April 1, 2011, the court granted the plaintiff’s

motion for default for failure to plead against Hammerson. On April 28,

2014, the court granted the plaintiff’s motion for default for failure to plead

against JPMorgan Chase Bank, N.A. We refer to Frimel as the defendant in

this opinion.

2 The letter, addressed to the clerk of the court, stated:

‘‘As of April 11, 2017, I was appointed [t]rustee for Thomas P. Willcutts,

Esq., who was suspended on an interim basis from the practice of law in

Connecticut, pursuant to Practice Book § 2-64, and by [o]rder of Judge
Robaina.

‘‘I am informing the [c]ourt, for informational purposes, in light of the

matter Bayview Loan Servicing, LLC v. Frimel et al. (MMX-CV11-

6004441-S), in which Attorney Willcutts filed an appearance for [the defendant]. Further, I have learned that [the defendant] has only become aware

of Attorney Willcutts’ suspension and her need to retain new counsel this

week due to mail delivery problems to her rural delivery route. Additionally,

I have come to understand that she currently is without new representation

at the time of this writing.

‘‘Finally, I respectfully request that the [c]ourt offer any appropriate forbearance or time in proceeding with the above matter, so that [the defendant]

has ample opportunity to arrange for new representation.’’ (Emphasis in

original.)

3 The plaintiff’s counsel stated: ‘‘And, Your Honor, this is the plaintiff’s

motion for summary judgment. And, just by way of background, the defendant was represented by Attorney Willcutts, who is no longer able to practice

at this moment.

‘‘We spoke with the trustee, who stated that he would be filing a request

with the [c]ourt for additional time, so that a new attorney can be sought.

‘‘I haven’t seen an appearance yet, but I did speak with the defendant

this morning. She said she is in talks with an attorney. She has his name.

He is deciding whether he wants to take the case or not. So, I leave that

matter up to Your Honor’s discretion.

‘‘We’re ready to proceed, but given the circumstances, we’re leaving it to

Your Honor’s discretion.’’

4 The following colloquy took place between the court and the defendant:

‘‘The Court: When can your attorney be hired and file an opposition to

the [motion for] summary judgment?

‘‘[The Defendant]: What I’ve heard is—and I’m sorry for the delay. The

trustee—there’s a problem with my mail. I don’t know if you’ve read that

letter. And the trustee—I did not know that my attorney had been suspended.

The first I heard of it is when I heard from the bank’s representative, which

they mailed something to me on—it’s postmarked [June 2, 2017], but I didn’t

receive it until almost two and [one-half] weeks later because of a mail

problem, which I continue to straighten out. And I then called the trustee,

who had not notified me, and his name is William B. Smith, and he called

me back and said, didn’t you get my letter? I never got a letter from him, and

that’s when I first heard that Attorney Willcutts had been suspended . . . .’’

5 Although the opposition made reference to a memorandum of law, the

memorandum of law in opposition to the motion for summary judgment

was not filed until October 2, 2017. On October 19, 2017, the defendant

filed a notice of intent to argue her objection and memorandum of law in

opposition to the plaintiff’s motion for summary judgment.

6 Although captioned as the plaintiff’s motion to reargue and for reconsideration, this motion was filed by the defendant.

7 The court also stated that ‘‘[g]iven the age of this case and the unfairness

to the plaintiff, the court finds that the defendant’s conduct is motivated only

by desire to delay proceedings and, in the absence of anything substantive

to oppose the plaintiff’s [motion for] summary judgment, the same is

granted.’’ With regard to the court’s statements regarding the age of the

case and the fact that the defendant’s conduct was motivated by a desire

to delay the proceedings, we note that the defendant filed her answer,

special defense and counterclaim on January 23, 2015. The plaintiff, however,

did not file its motion for summary judgment until June 2, 2017, over two

years later.

The defendant filed a motion for articulation requesting that the court

articulate, inter alia, the factual and legal basis for its conclusions that the

defendant’s conduct was motivated by a desire to delay the proceedings

and involved unfairness to the plaintiff. The court denied the motion for

articulation. The defendant thereafter filed a motion for review of the decision on the motion for articulation. This court granted review but denied

the relief requested therein.

8 Practice Book § 17-45 (b) provides: ‘‘Unless otherwise ordered by the

judicial authority, any adverse party shall file and serve a response to the

motion for summary judgment within forty-five days of the filing of the

motion, including opposing affidavits and other available documentary

evidence.’’

9 The court did not issue a written order establishing the deadline of

August 18, 2017. The defendant’s affidavit, filed on October 2, 2017, along

with the defendant’s memorandum of law in opposition to the plaintiff’s

motion for summary judgment, indicated that the defendant was not sure

of the nature of the August 18, 2017 deadline and that she contacted the

court clerk for clarification; the clerk, however, was unable to provide
clarification regarding the deadline.

10 Practice Book § 17-45 (c) provides: ‘‘Unless otherwise ordered by the

judicial authority, the moving party shall not claim the motion for summary

judgment to the short calendar less than forty-five days after the filing of

the motion for summary judgment.’’

11 We note that nothing in this opinion precludes the trial court, on remand,

from reconsidering the merits of the plaintiff’s motion for summary judgment

and determining whether that motion should be granted. See Capasso v.

Christmann, supra, 163 Conn. App. 261 n.13.