North Park Mortgage Services, Inc. v. Pinette

608 A.2d 714, 27 Conn. App. 628, 1992 Conn. App. LEXIS 217
CourtConnecticut Appellate Court
DecidedMay 26, 1992
Docket10503
StatusPublished
Cited by28 cases

This text of 608 A.2d 714 (North Park Mortgage Services, Inc. v. Pinette) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Park Mortgage Services, Inc. v. Pinette, 608 A.2d 714, 27 Conn. App. 628, 1992 Conn. App. LEXIS 217 (Colo. Ct. App. 1992).

Opinion

Landau, J.

The defendants, Robert and Nancy Pinette, appeal from the trial court’s judgment of foreclosure by sale and its denial of a motion for a written opinion.1 The plaintiff, North Park Mortgage Services, Inc., instituted a foreclosure action against the defendants who, in turn, filed an amended answer containing five special defenses and a five count counterclaim. The special defenses and the counterclaim alleged that the loan to the defendants, on which the foreclosure action was based (1) violated the Secondary Mortgage Act, General Statutes § 36-224/ (a), (2) was usurious under General Statutes §§ 37-4 and 37-9, (3) violated the Truth-In-Lending Act, General Statutes § 36-393 et seq., (4) was unconscionable and inequitable in derogation of General Statutes § 42a-2-302, and (5) violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b (a).

The plaintiff filed a motion to strike all counts of the counterclaim and each of the five special defenses.2 The trial court granted the motion without filing a written opinion stating the basis for its decision and denied the defendants’ request for an evidentiary hearing. The defendants filed a motion for reargument and for a [630]*630written opinion in accordance with Practice Book § 156.* *3 The trial court denied the motion.

The defendants claim that the trial court improperly (1) granted the plaintiffs motion to strike their special defenses and counterclaim, and (2) denied their motion for a written opinion in accordance with Practice Book § 156. The plaintiff claims that (1) the trial court properly denied the defendants’ motion for a written decision because only one ground of decision was alleged in its motion to strike, and (2) the trial court was correct, as a matter of law, in granting their motion to strike. We agree with the defendants as to their second claim and, therefore, do not address their first claim.

Our rules of practice require that a motion to strike raising claims of legal insufficiency separately set forth each such claim of insufficiency and distinctly specify the reason or reasons for each such claimed insufficiency. See Practice Book § 154. A general statement in a motion to strike that the complaint does not state a claim on which relief can be granted is usually deemed not to comply with the requirements of Practice Book § 154. Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986). A motion to strike that lacks specificity, but adequately submits the material issue to the court, however, is sufficient to comply with Practice Book § 154. Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988).4 The trial court is required [631]*631to specify in writing the legal basis of its conclusion where more than one ground of decision is set forth in the motion to strike. See Practice Book § 156.

The failure of the trial court to specify the way in which each special defense and counterclaim failed to set forth properly a defense or cause of action leaves a reviewing court in a position that it cannot determine the basis on which the trial court acted. This is especially true where, as here, the special defenses and the counts of the counterclaim allege an intricate mosaic of causes of action and defenses consisting of multiple levels and numerous alternative claims.5

[632]*632The defendants could have invoked Practice Book § 4051 and requested the trial court to articulate the basis of its decision more fully; see Braun v. Edelstein, 17 Conn. App. 658, 661, 554 A.2d 1102, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989); and thereafter moved for review in this court under Practice Book § 4054; Jazlowiecki v. Cyr, 4 Conn. App. 76, 79, 492 A.2d 516 (1985); in an effort to satisfy their burden of providing an adequate record for appellate review. Practice Book § 4061; State v. Laracuente, 205 Conn. 515, 520, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988); DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983). Under normal circumstances, we will not remand a case to correct a deficiency the appellant should have remedied. Carpenter v. Carpenter, 188 Conn. 736, 739 n.9, 453 A.2d 1151 (1982); Scherr v. Scherr, 183 Conn. 366, 368, 439 A.2d 375 (1981); Dixon v. Trubisz, 17 Conn. App. 216, 218, 551 A.2d 1259 (1988). Under the circumstances here, however, we deem the failure of the defendants to seek articulation or review a matter more of form than of substance. It is akin to the failure of the trial court, having made a final order, to prepare a judgment file. See Lehto v. Sprout, 9 Conn. App. 441, 445, 519 A.2d 1214 (1987). Here, the defendants, by filing a motion for reargument and for a written decision, followed every realistic avenue in attempting to obtain a more specific ruling from the trial court. The basis of the defendants’ motion was [633]*633that more than one issue was presented in the plaintiff’s motion to strike and that the trial court’s ruling was “incomplete and unintelligible in its present form.” In denying the motion, the trial court made clear that it believed only one issue was presented in the motion to strike and that a written opinion was not required. Thus, under these particular facts we decline to follow Carpenter, Scherr, and Dixon because we conclude that the defendants’ motion for a written decision satisfied their burden of attempting to provide an adequate record for appellate review.

We will resort to our supervisory power under Practice Book § 4183 to extricate ourselves from the procedural quagmire in which we find ourselves. This supervisory power includes, inter alia, “the power to make appropriate postappeal orders”; Guss v. Guss, 1 Conn. App. 356, 365, 472 A.2d 790 (1984) (Borden, J., concurring), quoting In re Juvenile Appeal (83-BC), 189 Conn. 66, 81, 454 A. 2d 1262 (1983); see also O’Neill v. O’Neill, 13 Conn. App. 300, 304, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); and the power to “modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal.” Practice Book § 4183. This power, however, does not allow litigants to circumvent other rules of practice designed to promote judicial efficiency and justice. “The unique circumstances of this case . . .

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Bluebook (online)
608 A.2d 714, 27 Conn. App. 628, 1992 Conn. App. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-park-mortgage-services-inc-v-pinette-connappct-1992.