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MAGEE AVENUE, LLC v. LIMA CERAMIC
TILE, LLC, ET AL.
(AC 39847)
DiPentima, C. J., and Moll and Lavery, Js.
Syllabus
The plaintiff brought this action against the defendants, M and L Co., to
recover unpaid rent, alleging claims for breach of contract and unjust
enrichment. The defendants filed a motion for summary judgment and,
one day before a hearing on that motion, they filed a copy of a lease
agreement and an affidavit from M. The trial court granted the motion
for summary judgment as to M and rendered judgment thereon, finding
that M did not enter into an agreement with the plaintiff in his individual
capacity but did so only as L Co.’s managing member. On appeal to this
court, the plaintiff claimed, inter alia, that the trial court improperly
rendered summary judgment as to M because M’s affidavit was untimely
and insufficient, and that the court improperly permitted and considered
M’s testimony during the hearing. Held:
1. Although the trial court incorrectly stated that the complaint was
‘‘stricken’’ as to M, the record demonstrated that the court rendered
summary judgment in favor of M on all three counts, and, therefore,
the plaintiff appealed from a final judgment.
2. The trial court improperly rendered summary judgment in favor of M;
given that, under the applicable rule of practice ([2016] § 17-45) at the
time of hearing, the plaintiff was required to file its evidence in opposi-
tion to the motion for summary judgment at least five days before the
hearing on the motion, M should not have been allowed to file his initial
affidavit in support of his motion one day before the hearing, which
affected the plaintiff’s ability to respond to M’s factual assertions with
supporting documents, and, therefore, M’s affidavit was untimely and
should not have been considered by the trial court.
3. The trial court improperly permitted and considered M’s live testimony
regarding the contents of his affidavit and his personal knowledge of
it during the hearing on the motion for summary judgment; that court’s
consideration of M’s testimony necessarily required it to make credibility
determinations and factual findings, which created genuine issues of
material fact that made summary judgment improper.
4. The trial court improperly rendered summary judgment in favor of M on
the count alleging unjust enrichment; because the written motion for
summary judgment was directed to the two breach of contract counts
only, and because M never moved for summary judgment on the unjust
enrichment count, nor did the defendants’ counsel ever ask that the
unjust enrichment count be included in the motion, the trial court was
not free to render summary judgment on that count sua sponte.
Argued May 21—officially released July 24, 2018
Procedural History
Action to recover unpaid rent, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, Housing Session at Norwalk, where
the court, Rodriguez, J., granted the defendants’ motion
for summary judgment as to the defendant Moufid Mak-
hraz and rendered judgment thereon; thereafter, the
court denied the plaintiff’s motion to reargue, and the
plaintiff appealed to this court. Reversed; further pro-
ceedings.
Richard J. Rapice, with whom, on the brief, were
Peter V. Lathouris and Conor J. McLaughlin, certified
legal intern, for the appellant (plaintiff).
Raymond W. Ganim, for the appellee (defendant
Moufid Makhraz).
Opinion
LAVERY, J. The plaintiff, Magee Avenue, LLC, appeals
from the judgment of the trial court rendering summary
judgment in favor of the defendant, Moufid Makhraz,1 on
the plaintiff’s complaint alleging two counts of breach
of contract and one count of unjust enrichment. On
appeal, the plaintiff claims that the trial court improp-
erly (1) rendered summary judgment because the defen-
dant’s affidavit in support of the defendants’ motion for
summary judgment was untimely and insufficient; (2)
permitted and considered the defendant’s testimony
during the hearing on the motion; and (3) permitted
the defendant to amend orally his motion for summary
judgment to include all counts when the written motion
only sought relief from the two counts of breach of
contract. We agree with the plaintiff’s claims and
reverse the judgment.
The following facts, as alleged in the complaint, and
procedural history are relevant to our decision. On
December 7, 2011, the plaintiff and the defendants
entered into a month-to-month lease for the defendants
to rent 46-50 Magee Avenue in Stamford. Per the terms
of the lease agreement, the defendants were to pay
$3500 per month. The defendants failed to make timely
rental payments. The defendants also were required to
keep the premises clean, sanitary, and in good condi-
tion, and to return the premises to the plaintiff in a
condition ‘‘identical’’ to that which existed when they
took possession, except for ordinary wear and tear. The
defendants were required to reimburse the plaintiff for
the cost of any repairs resulting from damage to the
premises through misuse or negligence. The defen-
dants, however, caused damage to many parts of the
premises but did not pay for the damage.
On February 23, 2016, the plaintiff filed a complaint
against the defendants. In its three count amended com-
plaint dated June 1, 2016, the plaintiff claimed that the
defendants breached the lease agreement by failing to
pay the full amount of rent and late fees and by damag-
ing the premises and failing to pay for the damage and
cost of collection, and that the defendants were unjustly
enriched by failing to pay for the use and occupancy
of the premises or for the damage the defendants caused
to the premises. On July 26, 2016, the defendants filed
a motion for summary judgment, claiming that ‘‘no con-
tractual relationship existed between the [p]laintiff and
the [d]efendants in this action.’’ Specifically, the defen-
dants argued in their memorandum of law in support
of their motion for summary judgment that the contract
at issue did not involve either defendant because the
tenant in the contract was identified as ‘‘Lima Tile,
Inc.’’ The defendants therefore argued that there was
no written agreement between the plaintiff and either
defendant. The plaintiff objected to the motion, claim-
ing that the motion was inadequate, per Practice Book
§ 17-45, because no supporting documents were
attached to the motion. The plaintiff also claimed that
the identification of ‘‘Lima Tile, Inc.’’ was a scrivener’s
error and that the defendants had ratified the
agreement. Attached to the plaintiff’s objection was an
affidavit from the plaintiff’s principal explaining that
he searched the secretary of the state’s online records
for ‘‘Lima Tile, Inc.,’’ but could find only ‘‘Lima Ceramic
Tile, LLC.’’ Appended to the affidavit were screen shots
from his web search, as well as a copy of a check made
out to the plaintiff from Lima, which was signed by
the defendant.
A hearing on the motion for summary judgment was
scheduled for October 4, 2016. The day before the hear-
ing, the defendants filed a copy of the lease agreement
and the defendant’s affidavit. In the affidavit, the defen-
dant stated that he signed the lease agreement as Lima’s
manager and did not rent the property individually or
personally. At the hearing the next day, the defendants
agreed that Lima would remain in the case but pressed
the motion for summary judgment as to the defendant.
The plaintiff argued that the defendant should remain
in the case also, as it would seek to pierce the corporate
veil, if necessary. The plaintiff asked the court to con-
sider that the defendants had filed their affidavit only
the day before, which affidavit the plaintiff claimed
was insufficient and unsupported. When the plaintiff
objected on the basis that the affidavit did not include
a statement that it was made on personal knowledge,
the defendants’ counsel offered for the court to hear
the defendant’s testimony. Over the plaintiff’s objection,
the court heard the defendant’s testimony, in which he
claimed to have rented the premises as Lima’s managing
member and not for his own personal use, and that he
had personal knowledge as to his testimony. After the
defendant’s testimony, the plaintiff again objected, not-
ing that the briefs did not ask for testimony and that,
because the rules of practice call for documentary evi-
dence to support a motion for summary judgment, the
mere fact that the defendant had to testify meant that
there was a factual issue in dispute.
In a memorandum of decision filed on October 4,
2016, the trial court found that the defendant did not
enter into an agreement with the plaintiff in his individ-
ual capacity, but only as Lima’s managing member, and
it stated that the complaint was ‘‘stricken’’ as to the
defendant. The plaintiff filed a motion to reargue, which
the court denied.2 This appeal followed. Additional facts
will be set forth as needed.
On appeal, the plaintiff claims that the trial court
improperly rendered summary judgment because the
defendant’s affidavit in support of his motion was
untimely and insufficient, permitted and considered the
defendant’s testimony during the hearing on the motion,
and permitted the defendant to amend orally his motion
for summary judgment to include judgment on all
counts when the written motion only sought relief from
the two counts of breach of contract.
‘‘Our review of the trial court’s summary judgment
rulings is plenary . . . and the general principles gov-
erning those rulings are well established. In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . A material fact . . . [is] a fact which will
make a difference in the result of the case.’’ (Citation
omitted; internal quotation marks omitted.) Doe v. West
Hartford, 328 Conn. 172, 191–92, 177 A.3d 1128 (2018).
I
Before we address the merits of the plaintiff’s claims,
we must consider whether this appeal was taken from
a final judgment. Although the defendants moved for
summary judgment on the first two counts only, the
trial court’s memorandum of decision on the motion
stated that ‘‘[t]he complaint is stricken as to [the defen-
dant].’’ (Emphasis added.) We, therefore, must deter-
mine whether the court rendered summary judgment
or whether it struck the complaint as to the defendant
without rendering judgment.
‘‘Jurisdiction of the subject-matter is the power [of
the court] to hear and determine cases of the general
class to which the proceedings in question belong. . . .
A determination regarding a trial court’s subject matter
jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record. . . . Where a decision as to
whether a court has subject matter jurisdiction is
required, every presumption favoring jurisdiction
should be indulged.’’ (Citations omitted; internal quota-
tion marks omitted.) Raudat v. Leary, 88 Conn. App.
44, 48, 868 A.2d 120 (2005).
‘‘[C]ertain basic principles . . . distinguish the pro-
cedural devices of a motion for summary judgment and
a motion to strike. Practice Book [§ 17-49] provides that
summary judgment 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. . . . In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to a judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . .
‘‘In contrast, a motion to strike, pursuant to Practice
Book § 10-39 (a), shall be used whenever any party
wishes to contest . . . the legal sufficiency of the alle-
gations of any . . . [claim] . . . to state a claim upon
which relief can be granted . . . .’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Bank of New York Mellon v. Mauro, 177 Conn. App.
295, 314–15, 172 A.3d 303, cert. denied, 327 Conn. 986,
175 A.3d 45 (2017).3
Here, we are not asked to treat a motion for summary
judgment as a motion to strike, but to treat the court’s
use of the word ‘‘stricken’’ to mean that it intended to
render summary judgment in favor of the defendant.
The defendant moved for summary judgment, and the
trial court noted that the memorandum of decision per-
tained to the defendant’s motion for summary judg-
ment; however, the trial court’s memorandum of
decision inexplicably stated that it was striking the com-
plaint as to the defendant, and the court denied reargu-
ment when presented with this conundrum.
In its complaint, the plaintiff alleged that the defen-
dant breached the lease agreement and was unjustly
enriched. Whether the defendant was a party to the
agreement is a factual question, and not a question of
whether the complaint was legally sufficient to state a
claim for relief. See Sandella v. Dick Corp., 53 Conn.
App. 213, 222, 729 A.2d 813, cert. denied, 249 Conn. 926,
733 A.2d 849 (1999). There was no challenge to the legal
sufficiency of the complaint; therefore, a motion to
strike would not have been an appropriate vehicle for
relief. See Velecela v. All Habitat Services, LLC, 322
Conn. 335, 341 n.4, 141 A.3d 778 (2016).
Although the court’s use of the language ‘‘[t]he com-
plaint is stricken’’ was incorrect, we nonetheless con-
strue the decision as rendering summary judgment in
favor of the defendant on all three counts. Simply put,
the court was not asked to strike the complaint; it was
asked to render judgment in favor of the defendant.
‘‘Although it is preferable for a trial court to make a
formal ruling on each count, we will not elevate form
over substance when it is apparent from the memoran-
dum of decision [what] the trial court [did].’’ Normand
Josef Enterprises, Inc. v. Connecticut National Bank,
230 Conn. 486, 488 n.1, 646 A.2d 1289 (1994); Raudat
v. Leary, supra, 88 Conn. App. 49; see also Meribear
Productions, Inc. v. Frank, 328 Conn. 709, 718, 183 A.3d
1164 (2018) (reviewing court looks to complaint and
memorandum of decision to determine whether trial
court explicitly or implicitly disposed of each count).
Given these circumstances, and cognizant that every
presumption favoring jurisdiction should be indulged,
we conclude that the court rendered summary judgment
for the defendant on all counts; therefore, the plaintiff
appealed from a final judgment, and we address the
merits of its claims.
II
The plaintiff first claims that the trial court improp-
erly rendered summary judgment because the defen-
dant’s affidavit in support of his motion was untimely
and insufficient. Specifically, the plaintiff argues that
the defendant’s affidavit was (1) untimely and should
not have been considered as valid evidence, (2) self-
serving hearsay and insufficient support for the motion,
and (3) insufficient to determine that there were no
genuine issues of material fact regarding the plaintiff’s
claim of unjust enrichment. We agree with the plaintiff
that the defendant’s affidavit was untimely and should
not have been considered.
Practice Book (2016) § 17-45 provided, in relevant
part, that ‘‘[a] motion for summary judgment shall be
supported by such documents as may be appropriate,
including but not limited to affidavits . . . . The
motion shall be placed on the short calendar to be held
not less than fifteen days following the filing of the
motion and the supporting materials, unless the judi-
cial authority otherwise directs. . . . Any adverse
party shall at least five days before the date the motion
is to be considered on the short calendar file opposing
affidavits and other available documentary evidence.’’4
(Emphasis added).
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
the material facts, which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law. The courts hold the movant to a strict standard.
To satisfy his 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 sub-
mitted 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.
. . . Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book [§ 17-45] . . . .’’ (Internal quota-
tion marks omitted.) State Farm Fire & Casualty Co.
v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
If mere assertions of fact are insufficient to establish
the existence of a material fact, then they are insuffi-
cient to establish the lack of an existence of material
fact in the face of opposing evidence.5 In essence, the
plaintiff here was required to respond to mere factual
assertions with its own supporting affidavits and docu-
mentation before the defendant presented his evidence
in support of those assertions in the first place. Consid-
ering that, under the rules of practice at the time of
the hearing, an adverse party was required to file its
evidence in opposition to a motion for summary judg-
ment at least five days before the hearing on the motion,
we fail to see how the defendant here should have been
permitted to file his initial affidavit in support of the
motion one day before the hearing. The defendant’s
affidavit therefore was untimely and should not have
been considered by the trial court.6 Therefore, because
the trial court should not have considered the defen-
dant’s affidavit, the court improperly rendered sum-
mary judgment in favor of the defendant.
III
The plaintiff next claims that the trial court improp-
erly permitted and considered the defendant’s live testi-
mony during the hearing on the motion for summary
judgment.7 We agree.
‘‘The fundamental purpose of summary judgment is
preventing unnecessary trials. . . . If evidentiary pre-
sentations and testimony were to be permitted, the
intent to reduce litigation costs by way of the summary
judgment procedure would be undermined, and there
may as well be a trial on the merits.’’ (Citation omitted;
internal quotation marks omitted.) Wells Fargo Bank,
N.A. v. Henderson, 175 Conn. App. 474, 487, 167 A.3d
1065 (2017). ‘‘A summary judgment should be summary;
that is, made in a prompt, simple manner without a full-
scale trial. The opposition to such a motion may include
the filing of affidavits or other documentary evidence;
Practice Book § 17-45; but does not include the live
testimony of any witnesses.’’ Braca v. Utzler, 134 Conn.
App. 460, 463 n.4, 38 A.3d 1249 (2012).
Here, it is undisputed that the defendant testified
regarding the contents of his affidavit and his personal
knowledge of it. The court’s consideration of this testi-
mony necessarily required it to make credibility deter-
minations and factual findings, a reality supported by
the court’s memorandum of decision, in which it stated
that ‘‘the court finds [that] the defendant . . . did not
enter into an agreement with the plaintiff . . . in his
individual capacity but only as the managing member
of . . . Lima Ceramic Tile, LLC.’’ (Emphasis added.)
Because the court made credibility determinations,
there were axiomatically genuine issues of material
fact, and summary judgment therefore was improper.
IV
The plaintiff finally claims that the trial court improp-
erly permitted the defendant to orally amend his motion
for summary judgment to include judgment on all
counts when the written motion was directed only to
the two counts of breach of contract. We agree that
the court improperly adjudicated the third count.
The defendants’ written motion sought summary
judgment on both breach of contract counts against
both defendants on the basis that neither defendant was
a party to the contract. At the hearing on the motion,
the defendants withdrew their motion as to Lima. The
plaintiff takes exception to the trial court’s rendering
of summary judgment as to the defendant on all counts.
The only discussion about the addition of the third
count alleging unjust enrichment occurred when the
defendants’ counsel alerted the court that they were
withdrawing their motion as to Lima. The following
colloquy took place:
‘‘The Court: [Defendants’ counsel], on your motion
for summary judgment, did you wish to add anything
that’s not in the pleadings on the record, because if you
don’t, that’s okay. I’ll take the papers once I address
[the plaintiff’s counsel].
‘‘[The Defendants’ Counsel]: What I would address,
Your Honor, is that for purposes of today, we’ve agreed
that Lima Ceramic Tile . . . could remain as a defen-
dant in this matter. We’re not going to pursue that. But
to the extent that they’re suing [the defendant] in his
individual capacity based on this lease, we would ask
for summary judgment, and there’s an affidavit
attached, and I have nothing else to add.
‘‘The Court: All right. I haven’t really examined the
pleadings in this case yet. . . . Is there a count
addressing [the defendant] as an individual defendant?
‘‘[The Defendants’ Counsel]: Your Honor, it appears
that all three of the counts reference him as a defendant.
‘‘The Court: All right.
‘‘[The Defendants’ Counsel]: So the first count as I’m
reading it is a nonpayment of rent count. The second
count appears to be a count claiming damages to the
property, and the third count is an unjust enrichment
as well as a damage claim.
‘‘The Court: All right. But is [the defendant] named
as a defendant in each of those counts?
‘‘[The Defendants’ Counsel]: Yes, Your Honor.
‘‘The Court: All right. And the agreement between
yourself and [the plaintiff’s counsel] is that Lima
Ceramic Tile remain as the defendant?
‘‘[The Defendants’ Counsel]: Well, I’ve offered that.
That hadn’t been accepted yet, but that was the offer
that I extended this morning, that Lima could remain
in but that [the defendant] should not be part of this
in an individual capacity.
‘‘The Court: All right. [Plaintiff’s counsel]?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor. We would
contend that both parties are to remain. If you look
closely at the month-to-month lease agreement, it is
signed by [the defendant], but there’s no indication
whether he’s signing as manager or otherwise. We
would also indicate that we fully intend to pierce the
corporate veil should we need to. We have no idea
where the assets remain on this matter, and so we
would ask that [the defendant] remain as a defendant
as well in this matter.
‘‘The Court: All right. Those are your claims. Is there
anything that you want to argue in support of your
claims that is not in the pleadings? That’s basically what
I’m asking the two of you. . . .
‘‘[The Defendants’ Counsel]: No, Your Honor.’’
The unjust enrichment count otherwise was not dis-
cussed. In its memorandum of decision, the trial court
rendered summary judgment as to all three counts in
favor of the defendant.
Perhaps most importantly, the defendant never
moved for summary judgment on the unjust enrichment
claim. The discussion between the trial court and coun-
sel merely addressed that the unjust enrichment count
was in the complaint, but nowhere does the defendants’
counsel specifically ask that the count be included in
the motion. In fact, when the court asked if there was
anything that counsel wanted to argue in support of
their claims that was not in the pleadings, the defen-
dants’ counsel said no.
‘‘[A] court may not grant summary judgment sua
sponte, and . . . pursuant to Practice Book § [17-44],
a person seeking summary judgment . . . must file an
appropriate motion addressed to it.’’ Hope’s Architec-
tural Products, Inc. v. Fox Steel Co., 44 Conn. App. 759,
762–63 n.4, 692 A.2d 829, cert. denied, 241 Conn. 915,
696 A.2d 985 (1997); see also Mamudovski v. BIC Corp.,
78 Conn. App. 715, 726, 829 A.2d 47 (2003) (‘‘[b]ecause
the court bypassed the procedural requirements of
Practice Book §§ 17-44 and 17-45, and did not receive
a knowing waiver of those requirements from the plain-
tiff, it was an abuse of discretion for the court to rule on
the defendant’s oral motion for summary judgment’’),
appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004).
Here, because the defendant did not move for sum-
mary judgment on the unjust enrichment count, the
trial court was not free to render summary judgment
on that count sua sponte.8 Therefore, it was improper
for the court to render summary judgment for the defen-
dant on the unjust enrichment claim.
The judgment is reversed and the case is remanded
for further proceedings.
In this opinion the other judges concurred.
1
Makhraz and Lima Ceramic Tile, LLC, were named as defendants. This
appeal pertains to the court’s rendering of summary judgment in favor of
Makhraz alone. For clarity, we will refer to Makhraz as the defendant, the
parties collectively as the defendants, and Lima Ceramic Tile, LLC, as Lima.
2
In his motion to reargue, the plaintiff argued that the defendants intro-
duced no admissible evidence to sustain their burden, that the court improp-
erly considered the defendant’s live testimony, that the court improperly
ruled that ‘‘[t]he complaint is stricken’’ in a decision on a motion for summary
judgment, that the court improperly considered summary judgment on the
unjust enrichment count sua sponte when the defendants never sought such
relief, and that the court did not address specific arguments with respect
to certain material facts raised by the plaintiff. (Emphasis omitted.)
3
Practice Book § 61-3 provides in relevant part that ‘‘[a] judgment dispos-
ing of only a part of a complaint . . . is a final judgment if that judgment
disposes of all causes of action in that complaint . . . brought by or against
a particular party or parties. Such a judgment shall be a final judgment
regardless of whether judgment was rendered on the granting of a motion
to strike pursuant to Section 10-44 . . . [or] by summary judgment pursuant
to Section 17-44 . . . .’’
Additionally, Practice Book § 10-44 provides in relevant part that ‘‘where
an entire complaint . . . or any count in a complaint . . . has been
stricken, and the party whose pleading or a count thereof has been so
stricken fails to file a new pleading within . . . fifteen day[s], the judicial
authority may, upon motion, enter judgment against said party on said
stricken complaint . . . .’’
4
Section 17-45 currently requires the adverse party to file its response to
the motion within forty-five days of the filing of the motion, as opposed to
at least five days before the hearing on the motion. Practice Book § 17-45
(b). Although ‘‘[p]rocedural statutes and rules of practice ordinarily apply
retroactively . . . [they] will not be applied retroactively if considerations
of good sense and justice dictate that [they] not be so applied.’’ (Internal
quotation marks omitted.) Narayan v. Narayan, 305 Conn. 394, 403, 46 A.3d
90 (2012). We conclude that those considerations dictate that the rule that
should be applied in this case is the one that was in effect at the time of
the hearing on the motion for summary judgment; otherwise, we would
effectively be pulling the rug out from under the plaintiff, who complied
with the rule as written at the time. Even if we were to apply the current
version of § 17-45, we would be troubled by the defendants’ failure to support
their motion with appropriate documents because ‘‘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’’; Practice
Book § 17-45 (c); and the defendants did not file their supporting documents
within that timeframe.
5
Practice Book § 17-45 ‘‘does not require affidavits when the relevant
facts are available to the court and unchallenged by the nonmoving party
. . . .’’ Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77
A.3d 726 (2013). The present case does not involve such a scenario.
6
Because we conclude that the trial court’s consideration of the defen-
dant’s untimely affidavit was improper, we do not consider the plaintiff’s
alternative arguments that the affidavit was self-serving hearsay and insuffi-
cient on its face.
7
Although we conclude that the court improperly rendered summary
judgment because the defendant’s affidavit was untimely, we also consider
this claim because it provides an alternative ground for affirmance.
8
The defendant, without citation to any authority, essentially claims that
the plaintiff waived its argument that the trial court could not allow the
defendant to orally amend his motion by not objecting during the hearing;
however, as we have noted, the record does not indicate that the defendants
actually asked for the court’s permission to add the unjust enrichment count
to the motion. We fail to see how the plaintiff could have objected to a
request to add the unjust enrichment count to the motion for summary
judgment when that request was never made.