GMAC Mortgage, LLC v. Demelis

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GMAC MORTGAGE, LLC v. DANIEL
DEMELIS ET AL.
(AC 39836)
Sheldon, Bright and Flynn, Js.

Syllabus

The plaintiff, G Co., sought to foreclose a mortgage on certain real property
owned by the defendant C. After the trial court rendered a judgment
of foreclosure by sale and just prior to the sale date, C filed a petition
for bankruptcy, which was eventually dismissed in March, 2014. Subse-
quently, in April, 2014, G Co. filed a motion to open the judgment,
in which it informed the court that C’s bankruptcy petition had been
dismissed. That motion was not heard by the court for more than two
years. In July, 2015, the court, instead, sua sponte issued an order
requiring G Co. to file an affidavit stating the status of C’s bankruptcy
petition and whether a motion for relief from stay had been filed, which
G Co. did not do. Thereafter, G Co. filed a motion to substitute D Co.
as the plaintiff, which the trial court granted. C subsequently filed a
motion to dismiss the action on two grounds, claiming that the case
should be dismissed due to G Co.’s lack of diligence in prosecuting the
action and because G Co. never complied with the court’s July, 2015
order. The trial court denied C’s motion to dismiss and considered, for
the first time, G Co.’s April, 2014 motion to open the judgment, which
it granted, and rendered a judgment of strict foreclosure. Subsequently,
the court denied C’s motion for articulation, reconsideration and/or
reargument, and C appealed to this court. Held:
1. The trial court did not abuse its discretion in denying C’s motion to
dismiss based on G Co.’s failure to comply with a court order: the subject
order, which stated that a failure to comply would result in dismissal,
was not self-executing, as it merely set forth the court’s then-present
intention to dismiss the case if G Co. did not comply, and in the event
of noncompliance, further action of the court was still required to render
a judgment of dismissal and the trial court retained the jurisdiction and
discretion to decide not to impose the sanction of dismissal; moreover,
the court’s decision to deny the motion to dismiss was consistent with
the policy preference to bring about a trial on the merits of a dispute
whenever possible and was supported by the facts that G Co. actually
had informed the court of the status of the defendant’s bankruptcy in
its April, 2014 motion to open the judgment, and that C had waited more
than one year from G Co.’s failure to comply with the order before filing
her motion to dismiss.
2. C could not prevail on her claim that the trial court abused its discretion
in not dismissing the action due to G Co.’s failure to prosecute the case
with reasonable diligence; the court exercised its discretion in favor of
resolving the case on its merits, and the delay in the resolution of the
case was not attributed solely to G Co. given that, after the judgment
of foreclosure by sale was first rendered, C moved to open the judgment
three times and, on the eve of the sale date, filed for bankruptcy, which
stayed the foreclosure by sale, and that when the court issued its July,
2015 order requiring G Co. to provide an affidavit regarding C’s bank-
ruptcy petition, C remained silent even though she knew her bankruptcy
petition had been dismissed more than one year prior and that G Co.
had already brought that fact to the court’s attention.
C’s claim that the trial court abused its discretion by denying her motion
for articulation, reconsideration and/or reargument was not reviewable,
C having failed to file a motion for review pursuant to the applicable
rule of practice (§ 66-7) following the trial court’s denial of her motion.
Argued on February 1—officially released April 17, 2018

Procedural History

Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Middlesex, where the court, Aurigemma, J.,
rendered a judgment of foreclosure by sale; thereafter,
the court granted the defendant Courtney Demelis’
motion to open the judgment; subsequently, the court
granted the plaintiff’s motion to substitute Ditech Finan-
cial, LLC, as the plaintiff; thereafter, the court denied
the defendant Courtney Demelis’ motion to dismiss;
subsequently, the court granted the substitute plaintiff’s
motion to open the judgment and rendered a judgment
of strict foreclosure; thereafter, the court denied the
defendant Courtney Demelis’ motion for articulation,
and the defendant Courtney Demelis appealed to this
court. Affirmed.
C. Michael Budlong, 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).
Opinion

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 judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. In January, 2011, the original plain-
tiff commenced this foreclosure action by writ,
summons and complaint with a return date of February
8, 2011. The defendant appeared and requested partici-
pation 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 Octo-
ber 17, 2016. At the same time, the court also consid-
ered, 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 defen-
dant’s bankruptcy petition by August 6, 2015. The defen-
dant argues that because the order stated that a failure
to comply with the order ‘‘will result in dismissal pursu-
ant to [Practice Book §] 14-3,’’ the order was self-execut-
ing, 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 inap-
posite. 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 cohabi-
tation.’’ (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., 518, 522. Accordingly,
the court already had rendered a judgment, which this
court determined was clear and unambiguous. Id., 522.
In Johnson v. Atlantic Health Services, P.C., Superior
Court, judicial district of New Haven, Docket No. CV-
99-0430613-S (April 30, 2002), the trial court, Blue, J.,
issued a contingent order granting the defendants’
motion for judgment on the plaintiffs’ stricken com-
plaint, stating that the motion was ‘‘granted unless an
amended complaint [was] filed by’’ a particular date.3
(Internal quotation marks omitted.) Id. After the dead-
line 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, judg-
ment 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 actu-
ally had informed the court of the status of the defen-
dant’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 discre-
tion in denying the defendant’s motion to dismiss on
this ground.
II
The defendant next claims that the trial court abused
its discretion by not dismissing the case due to the
original plaintiff’s failure to prosecute the case with
reasonable diligence. We are not persuaded.
‘‘Practice Book § 14-3 (a) permits a trial court to
dismiss an action with costs if a party fails to prosecute
the action with reasonable diligence. The ultimate
determination regarding a motion to dismiss for lack
of diligence is within the sound discretion of the court.
. . . Under [§ 14-3], the trial court is confronted with
endless gradations of diligence, and in its sound discre-
tion, the court must determine whether the party’s dili-
gence falls within the reasonable section of the
diligence spectrum. . . . Courts must remain mindful,
however, that [i]t is the policy of the law to bring about
a trial on the merits of a dispute whenever possible . . .
and that [o]ur practice does not favor the termination
of proceedings without a determination of the merits
of the controversy where that can be brought about with
due regard to necessary rules of procedure.’’ (Citations
omitted; internal quotation marks omitted.) Bobbin v.
Sail the Sounds, LLC, 153 Conn. App. 716, 726–27, 107
A.3d 414 (2014), cert. denied, 315 Conn. 918, 107 A.3d
961 (2015).
As previously noted, courts typically should exercise
their discretion in favor of resolving a case on its merits.
That is exactly what the court did here. Furthermore,
the delay in the resolution of this case can hardly be
attributed solely to the original plaintiff. Judgment was
first rendered in this case on April 2, 2012. Thereafter,
the defendant three times moved to open the judgment,
extending the sale date until September 14, 2013. Then,
on the eve of the sale date, the defendant filed for
bankruptcy, staying the foreclosure by sale. When the
court issued its order on July 6, 2015, requiring the
original plaintiff to provide an affidavit regarding the
defendant’s bankruptcy petition, the defendant
remained silent even though she knew that her bank-
ruptcy petition had been dismissed more than one year
earlier and that the original plaintiff had brought that
fact to the court’s attention in its April 4, 2014 motion
to open. On the basis of these facts, the court’s denial
of the defendant’s motion to dismiss in no way consti-
tuted an abuse of discretion.
III
Finally, the defendant claims that the court abused
its discretion by denying her November 7, 2016 motion
for articulation, reconsideration and/or reargument. We
decline to review this claim.
The defendant’s entire argument is as follows: ‘‘With-
out reasoning behind the court’s denial of her motion
to dismiss and subsequent motion for reargument, [the
defendant] was left to speculate as to the court’s reason-
ing for each, thereby leaving her without the proper
information to seek relief on appeal. In her motion for
reargument, [the defendant] requested at a minimum,
an articulation of the court’s denial of her motion to
dismiss and also sought reargument on the issues set
forth above. Due to the blanket denial of this motion,
[the defendant] could not adequately challenge the
orders of the court and was improperly left to guess at
the court’s reasoning.’’
The defendant’s argument improperly attempts to
obtain review of the court’s denial of her request for
articulation. See Practice Book § 66-5 (‘‘[t]he sole rem-
edy of any party desiring [appellate review of] the trial
court’s decision on the motion [for articulation] filed
pursuant to this section . . . shall be by motion for
review under [§] 66-7’’). The defendant could have filed
a motion for review pursuant to Practice Book § 66-7. In
fact, the defendant’s counsel admitted at oral argument
that he did not do so because he has been dissatisfied
with this court’s rulings on such motions in other cases.
Counsel’s past disappointments notwithstanding, we
will not condone the defendant’s attempted end run
around our rules of practice by considering her claim.
See Havis-Carbone v. Carbone, 155 Conn. App. 848, 851
n.3, 112 A.3d 779 (2015) (declining to review defendant’s
claim that court improperly denied motion for articula-
tion because defendant ‘‘failed to file a motion for
review, which is the remedy for the denial of a motion
for articulation’’).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Daniel Demelis is not participating in this appeal. Accordingly, any refer-
ence to the defendant is to Courtney Demelis only.
2
On April 18, 2016, prior to rendering the judgment of strict foreclosure,
the trial court granted the motion filed by the original plaintiff, GMAC
Mortgage, LLC, to substitute Ditech as the party plaintiff.
3
In Johnson v. Atlantic Health Services, P.C., 83 Conn. App. 268, 849
A.2d 853 (2004), the defendants appealed from the granting of the plaintiffs’
motion to open the judgment of dismissal, claiming that the court improperly
determined that the motion to open was timely pursuant to Practice Book
§ 17-4 (a). Id., 269. This court affirmed the order granting the motion to
open, holding that ‘‘[n]otice is necessary to make a determination of the
date that commences the four month period within which a party may file
a motion to open a judgment. Noncompliance with a contingent order, by
itself, cannot serve as notice of the resultant judgment.’’ Id., 276. In the
present case, notice of a judgment of dismissal was not sent to the parties.
Consequently, even if the court’s order was self-executing, a notice of the
judgment still would have had to be sent in order to commence the four
month period in which the original plaintiff could file a motion to open.