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Advance Release Opinions – April 27

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Reviews of the Appellate Court’s advance release opinions about deed restrictions, divorce, foreclosure, and governmental immunity and procedure.

Deed Restrictions

Jepsen v. Camassar – Long, fact-specific opinion about modifying restrictions in a deed conveying beach rights to all of the property owners in a subdivision. Trial court ruled that modification was valid. Appellate Court reversed and remanded with direction to render judgment declaring modification invalid, finding that: (1) association failed to give notice of the vote on the modification to all who were entitled to notice; and (2) the modifications were not approved by a majority of property owners as the deed required.

Divorce

Steller v. Steller – In modifying alimony, trial court properly determined that defendant’s earning capacity could be less than his current income because earning capacity is what defendant can be expected to earn in the future, not what he earns now. But, Appellate Court reversed because the evidence did not support the trial court’s determination of the amount of defendant’s earning capacity.

Foreclosure

Wells Fargo Bank, N.A. v. Melahn – Per curiam opinion. Trial court struck borrower’s counterclaims and special defenses and then granted bank’s motion for judgment on the counterclaims. Appellate Court dismissed the appeal as to the special defenses for lack of a final judgment, and affirmed the striking of the counterclaims, finding that trial court did not abuse its discretion in concluding that they were either legally insufficient or did not meet the transaction test. Appellate Court also affirmed the judgment on the counterclaim because borrower’s attempt to replead merely added conclusory statements to some of the counterclaims, and those additions did not correct the legal insufficiency.

Governmental Immunity and Procedure

Carter v. Watson – Governmental immunity barred inmate’s claims for money damages against Attorney General and four state employees, sued in their official capacities for failing to timely restore inmate to his proper status after an overturned drug test. Inmate’s claim for declaratory relief arising from the same incident was properly dismissed as moot since it did not fall within the mootness exception for matters capable of repetition, yet evading review.

Advance Release Opinions – April 20

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, divorce, mortgage foreclosure, and professional negligence.

Civil Procedure

Anderson v. Ocean State Job Lot -Trial court dismissed because plaintiff failed to appear for a court-ordered deposition. Plaintiff moved to open, saying that he missed the deposition because he was incarcerated. Trial court denied the motion. On appeal, plaintiff claimed that defendant obtained the dismissal by fraud. Appellate Court affirmed because plaintiff did not raise his fraud claim before the trial court, and because he did not verify his motion to open by oath as CGS § 52-212 requires.

Bridgeport v. Grace Building, LLC – Tenant’s lawyer withdraw and trial court continued the trial so tenant could get a new one. Tenant had a new lawyer lined up, but the day before trial, the new lawyer said he would not appear for tenant. Trial court defaulted tenant for failure to appear for trial. Tenant moved to open the default, saying that the debacle with new lawyer was reasonable cause and there were good defenses, as reflected in his already-filed answer and special defenses. Trial court denied the motion. After tenant appealed, trial court granted landlord’s motion to terminate appellate stay, and landlord took possession. Appellate Court found that turnover of possession did not moot appeal since lease was for 98 years, meaning that court could restore property to tenant. Appellate Court also found that denying motion to open was an abuse of discretion. Tenant’s answer included meritorious defenses; delays in the action were at landlord’s door, not tenant’s; and tenant’s new lawyer sandbagged him the day before trial.

Packard v. Packard – Appellate Court declined to review this appeal in a divorce case because “[t]he defendant, in her lengthy and detailed brief, present[ed] no legal analysis and cite[d] virtually no case law.”

Divorce

Hirschfeld v. Machinist – Latest installment of what seems to be a never-ending divorce. In this installment, Appellate Court rejected all four of plaintiff’s contentions and affirmed. First, plaintiff claimed that defendant was in contempt for underpaying her for certain investments that were supposed to have been divided. Appellate Court found defendant could not be in contempt because there was no order to pay plaintiff any share of the investments. That’s just what defendant did in good faith after he learned that an in kind division was impossible. Second, plaintiff claimed that defendant was in contempt for underpaying alimony in the first year of the divorce because of a questionable interpretation of the effect of an income tax issue. Appellate Court found that although defendant’s interpretation did not have a reasonable basis, he made it in good faith and it was not frivolous. Third, plaintiff claimed that defendant was in contempt for violating a minimum alimony provision and that the trial court had improperly accepted parole evidence on the meaning of that provision. Appellate Court found that the provision could not be reasonably interpreted any other way. Fourth, plaintiff claimed she was entitled to her attorney’s fees in bringing the other three matters to the trial court’s attention. Appellate Court found that she was not entitled to attorney’s fees because the trial court properly declined to hold defendant in contempt.

Schimenti v. Schimenti – Parties agreed to amend original judgment by requiring defendant to pay 50% of plaintiff’s initiation fee for a country club golf membership. Defendant did not pay, and by way of excuse wanted to offer evidence about the parties’ intent for the provision. Trial court declined that request, and ordered defendant to pay as agreed. Certain of the trial court’s comments in doing so suggested a personal bias based on her own experiences with country club golf memberships. Relying on the plain error doctrine, defendant appealed. Appellate Court reversed, finding that it would be a manifest injustice to defendant to do anything else.

Mortgage Foreclosure

Aurora Loan Services, LLC v. Condron – My case. Under most residential mortgages, notice of default is given when mailed by first class mail or when actually delivered if sent by any other means. Bank sent default notice by certified mail, but failed to prove actual delivery. Trial court ruled that actual delivery was not required because certified mail was the same thing as first class mail, and certified mail substantially complied with the notice provision in any event. Appellate Court reversed, finding that certified mail requires actual delivery, and substantial compliance does not apply where there is no notice, as opposed to a technically deficient notice.

Professional Negligence

Windsor v. Loureiro Engineering Associates – Seven year statute of limitations of CGS § 52-584a barred plaintiff’s claim against architects and engineers for allegedly negligently preparing a Comparable-to-New report that plaintiff used to obtain state funding for a school renovation project.

 

Advance Release Opinions – April 13

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, breach of contract, business dissolution, civil procedure, eviction, mortgage foreclosure, personal injury, and worker’s compensation.

Administrative Law

Berka v. Middletown – Trial court found that it lacked subject matter jurisdiction over Berka’s appeal of notice of violations issued by city’s department of health because Berka named only city, and not department of health, as the defendant. Appellate Court concluded that failure to name department of health did not deprive court of subject matter jurisdiction, but affirmed because his failure to serve department did.

Breach of Contract

Randazzo v. Sakon – Parties resolved blow up over development of shopping center with global settlement that had several inter-related pieces, including an easement from plaintiff to defendant. Though everyone signed the global agreement, defendant never signed the easement itself. Every year after that, in accordance with the easement, plaintiff sent defendant a bill for the taxes on the easement portion of the property. And every year defendant refused to pay. Plaintiff sued. Case was tried to an attorney trial referee. Trial court accepted referee’s recommendation to enter judgment for plaintiff. Appellate Court affirmed, finding that (1) plaintiff’s claim was for breach of contract, not indemnification, and thus had a 6-year, not a 3-year, statute of limitations; (2) statute of frauds did not apply to the easement because defendant had accepted the conveyance, and the global settlement validated the easement in any event; and (3) holding defendant responsible for the part of the taxes that he voluntarily agreed to pay was merely holding defendant to his agreement, and was not (a) an impermissible, separate tax on the property subject to the easement; (b) an impermissible double tax on top of the additional tax he had to pay because the easement increased the value of his property; or (c) something to be shared by another tenant who also used the easement but had not agreed to pay any portion of the taxes.

Business Dissolution

Chioffi v. Martin – Law firm disintegrated. Trial court found that Martin breached two sections of the partnership agreement by taking out too much money during the windup and awarded Chioffi damages and attorney’s fees. Trial court denied Chioffi’s claims for breach of fiduciary duty and an accounting. Both parties appealed. Appellate Court found that Martin did breach one section of the partnership agreement, but it was not the section that would give Chioffi attorney’s fees. Appellate Court also found that (1) Martin breached a fiduciary duty, which can give rise to attorney’s fees because it is a tort; (2) either Chioffi had waived his claim to an accounting, or trial court did not abuse discretion in denying Chioffi’s claim for one; and (3) trial court did not miscalculate Chioffi’s damages. Remanded to trial court to determine whether to award Chioffi attorney’s fees for Martin’s breach of fiduciary duty, and if so, how much.

Civil Procedure

McMahon v. Middletown – In this municipal employment case, trial court denied former deputy police chief’s request to ask leading questions on his direct examination of current and former city officials. On appeal, McMahon claimed that he had an absolute right under CGS § 52-178 to lead these witnesses. Appellate Court declined to review the claim, and affirmed, finding that McMahon had failed to preserve the issue for appeal because he did not distinctly raise the statute, or the absolute right he claimed it conferred, before the trial court.

Eviction

Altama, LLC v. Napoli Motors, Inc. – Commercial tenant claimed that summary process complaint did not allege that lease had terminated by lapse of time, and that it had timely exercised its right to renew. Trial court found for landlord. Appellate Court affirmed.

Mortgage Foreclosure

GMAC Mortgage, LLC v. Demelis – Appellate Court affirmed judgment of foreclosure by sale, finding that trial court did not abuse its discretion in refusing dismissal: (1) for failure to comply with conditional order for dismissal for failure to prosecute; or (2) for failure to prosecute despite a delay of more than two years. Appellate Court declined to review borrower’s claim that trial court abused its discretion in denying motion for articulation, reconsideration and/or reargument, because borrower did not file a motion for review of that denial, which was her only remedy.

Personal Injury

Osborn v. Waterbury – Fifth grader was assaulted at recess by other students. Trial court found for plaintiff, concluding that ‘‘one . . . student intern and three . . . or four . . . staff members were not sufficient to exercise proper control over perhaps as many as . . . (400) students.’’ Appellate Court reversed with direction to render judgment for defendants because the number of staff necessary for proper control required expert testimony and plaintiff failed to offer any.

Worker’s Compensation

Desmond v. Yale-New Haven Hospital, Inc. – Interesting procedural issue for starters. Trial court granted defendant’s motion to strike because plaintiff’s claims were barred by the worker’s compensation exclusivity provision. Plaintiff filed a substitute complaint. Defendant requested revisions seeking deletion of all of the allegations of the substitute complaint as not materially different from the complaint that was struck, and did not cure its deficiencies. Trial court overruled plaintiff’s objections and dismissed the action. Appellate Court noted that, by filing the amended complaint, plaintiff waived the right to appeal the issue whether the original complaint was properly struck. Instead, all plaintiff could appeal was whether the amended complaint was materially different from the original complaint and cured its deficiencies. Appellate Court declined to review that issue because plaintiff had inadequately briefed it. But, Appellate Court did reverse the trial court’s ruling denying plaintiff’s request for leave to amend her substitute complaint to add a retaliatory discrimination claim, finding that the trial court based its denial on the wrong proposed amended substitute complaint.

 

Advance Release Opinions – April 6

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, mortgage foreclosure, noncompete agreements, and vicarious liability.

Civil Procedure

Ruiz v. Victory Properties, LLC – Plaintiff brought negligence claims against D1, and derivative fraudulent transfer claims against D2 and D3. D1, and D2 and D3, filed separate summary judgment motions and the trial court granted both of them. Plaintiff appealed the summary judgment for D1, but not the summary judgment for D2 and D3. Over the next four and a half years, Appellate Court reversed the summary judgment for D1, and Supreme Court affirmed that reversal. Back in the trial court, plaintiff moved to open the summary judgment against D2 and D3, arguing that the reversal as to D1 presented good cause for reviving the derivative claims against D2 and D3. Trial court denied the motion. Appellate Court affirmed because (1) Practice Book § 17-4, CGS § 52-212a, and the doctrine of finality of judgments all precluded opening a judgment more than four months after it became final for purposes of appeal; and (2) plaintiff did not argue that the four-month period should be tolled for any equitable reason. Appellate Court also found that the appellate stay under Practice Book § 61-11(a) (1) did not toll the four-month period because it precludes only proceedings to enforce or carry out a judgment, and a motion to open is not a proceeding to enforce or carry out a judgment; and (2) did not apply to the summary judgment for D2 and D3 because plaintiff did not appeal that judgment.

Mortgage Foreclosure

Bayview Loan Servicing, LLC v. Park City Sports, LLC – Mild yawn. Even if plaintiff failed to comply with standing order about federal loss mitigation affidavit, it did not deprive trial court of subject matter jurisdiction because that depends on statutes or the constitution, and standing orders are not statutes or even rules of practice. There were no issues of fact about application of mortgage payments; date of default or propriety of the notice of default; assignment of the note to plaintiff; or the validity of the federal loss mitigation affidavit. Appellate Court declined to review defendant’s claim that the trial court should have granted his petition for foreclosure mediation because it failed to present a record adequate for review.

Nationstar Mortgage, LLC v. Mollo – Trial court granted plaintiff’s motion for summary judgment as to liability even though the motion did not address defendant’s special defenses because plaintiff filed the motion before defendant filed his answer.  Appellate Court reversed, finding that trial court lacked authority to raise and consider, sua sponte, issues that plaintiff hadn’t raised, namely whether there fact issues about the special defenses.

Noncompete Agreement

DeLeo v. Equale & Cirione, LLP – Accounting firm’s partnership agreement included noncompete clause. DeLeo left the firm and began practicing on his own. He then sued the firm, claiming essentially that he was still a partner, was improperly excluded from the firm, and the court should dissolve the firm. The firm counterclaimed for breach of the noncompete agreement. Trial court found for the firm on DeLeo’s claims and on the firm’s counterclaims. Appellate Court agreed with DeLeo’s claim that the noncompete agreement was not a liquidated damages clause, but a restraint of trade subject to a reasonableness analysis. Since the trial court did not perform that analysis, Appellate Court reversed and remanded for that purpose. Appellate Court did consider, and reject, DeLeo’s other claims that (1) trial court found he was estopped to deny enforceability of noncompete agreement (it didn’t); and (2) firm waived noncompete agreement (it didn’t). Appellate Court also rejected what might have been DeLeo’s best argument because he had not raised it in the trial court and did not meet the requirements for plain error review. More specifically, on appeal, DeLeo claimed that trial court should have dissolved the “partnership” because, after he left, there was only one partner, and there is no such thing as a one-partner partnership. In rejecting this claim, Appellate Court noted that not only had DeLeo failed to raise it in the trial court, he was contradicting himself because his position there was that he was still a partner, making it at least a two-partner partnership.

Vicarious Liability

Fiano v. Old Saybrook Fire Company No. 1, Inc. – As he was leaving firehouse to go home to change for his high school yearbook photo, seventeen-year-old junior firefighter hit plaintiff with his car (plaintiff was riding a motorcycle). Plaintiff wanted to hold Fire Company vicariously liable. Appellate Court affirmed trial court’s summary judgment for Fire Company because junior firefighter was not acting within the scope of his duties when the accident happened.

CT Appeals: AC Reverses Foreclosure for Standing Issue

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In this Connecticut appeal, Deutsche Bank National Trust Company, Trustee v. Thompson, the Appellate Court reversed the judgment of foreclosure because the trial court did not make any factual findings as to plaintiff’s standing.

Plaintiff alleged in the complaint that it was the holder of the note. Defendant was defaulted for failure to plead. The trial court entered a judgment of foreclosure but made no factual findings as to whether plaintiff was the holder or owner of the note at the time it commenced the action. The Appellate Court reversed, concluding that, absent such factual findings, it could not answer “[t]he key question … [of] when the note came into the plaintiff’s possession.”

Plaintiff argued on appeal that if it had not presented the note to the trial court, the trial court could not have entered the foreclosure judgment. Plaintiff claimed, in other words, that it’s implicit from the judgment that the trial court had the note before it at the time of entry. The Appellate Court rejected this contention because there was no evidence that plaintiff ever presented the original note to the trial court. Plus, the copy of the note in the record was payable to the original lender, not plaintiff, and was not endorsed. Without an endorsement, plaintiff could not be the holder.

Plaintiff also argued that it had established holder status because it alleged that status in the complaint and defendant was defaulted for failure to plead. The Appellate Court rejected this argument.  Finding standing by a default in pleading would be akin to finding standing by waiver or consent, which the law expressly precludes.

The Appellate Court also “reject[ed] the plaintiff’s argument that an inadequate record precludes our review of its standing.” Though the appellant has the burden of presenting a record adequate for review, plaintiff has the burden of proving standing whenever the issue is raised, including on appeal. Because it is not the Appellate Court’s function to find facts, “[t]he judgment [was] reversed and the case [was] remanded for a determination of the jurisdictional issue and for further proceedings according to law.”

Ho-Hum, Another Foreclosure Plaintiff has Standing

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Some Connecticut appeals seem doomed to fail from the outset. The challenge to plaintiff’s standing to foreclose in Property Asset Management, Inc. v. Lazarte is one of those.

Plaintiff’s motion for summary judgment included an affidavit asserting that plaintiff received delivery of the note, endorsed in blank, on a specific date that was prior to commencement of the action. The trial court didn’t have to rule on the summary judgment motion because it later defaulted defendant for failing to comply with court-ordered discovery. The trial court ultimately entered a judgment of strict foreclosure and set a law date.

After a couple of dismissed bankruptcies later, the parties were back in court to reset the law date. Defendant filed a motion to dismiss, arguing that plaintiff lacked standing to foreclose. The trial court denied the motion to dismiss and reset the law date. Defendant appealed. The Appellate Court affirmed.

Defendant’s Main Arguments on Appeal

“[D]efendant first argue[d] that the court improperly denied her motion to dismiss on the basis of its finding that she had failed to counter the rebuttable presumption that the original plaintiff had standing to initiate this action.”

“[D]efendant also claim[ed] that the trial court improperly failed to conduct an evidentiary hearing on the motion to dismiss.”

Appellate Court Concludes Plaintiff had Standing to Foreclose

A “holder” is a person in possession of a note (assuming it’s a negotiable instrument) endorsed in blank. Under Supreme Court precedent, in a mortgage foreclosure action, the holder is rebuttably presumed also to be the owner of the debt. Since the owner of the debt on the date the action is commenced has standing to foreclose, so too does a person rebuttably presumed to be the owner of the debt, like the holder of the note, on the date the action is commenced.

“[A]lthough the court did not state the basis for its finding that the original plaintiff was in possession of the note when it initiated the foreclosure action, that finding is supported by the record, namely, the affidavit submitted with the motion for summary judgment indicating that the note [endorsed in blank] was delivered to the original plaintiff on or before October 6, 2008. The defendant presented no evidence that the original plaintiff transferred or lost possession of the note prior to commencing the foreclosure action on October 14, 2008.”

“Because the defendant presented the court with nothing to rebut the evidence in the record that the original plaintiff possessed the mortgage note endorsed in blank at the time that it commenced this action, and thus that it had standing, we conclude that the court properly denied the motion to dismiss.”

Appellate Court Concludes No Evidentiary Hearing Required

“A court is required to hold an evidentiary hearing before adjudicating a motion to dismiss only if there is a genuine dispute as to some pertinent jurisdictional fact…. In the present case, there was no jurisdictional fact in dispute necessary to determine whether the original plaintiff had standing to bring the present action. The record before the court revealed that the original plaintiff was in possession of the note, endorsed in blank, at the time it commenced the action, and, thus, there was a rebuttable presumption of standing. Because the defendant failed to demonstrate the existence of any relevant jurisdictional fact that was in dispute, the court was not required to hold an evidentiary hearing before ruling on the defendant’s motion to dismiss.”

Other Things to Note

In footnote 5, the Appellate Court rejected plaintiff’s arguments that defendant had waived standing and public policy militated against raising the standing argument at such a late stage in the proceedings. “As we have indicated, … a party may raise a lack of subject matter jurisdiction at any time, and subject matter jurisdiction cannot be conferred on the court by waiver or consent of the parties…. The defendant’s claim that the original plaintiff lacked standing implicates subject matter jurisdiction and, therefore, is not waivable and is properly before this court.”

Defendant Denied Attorney’s Fees in Withdrawn Foreclosure

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In this Connecticut appeal (Connecticut Housing Finance Authority v. Alfaro), the Appellate Court denied defendant’s motion for attorney’s fees pursuant to CGS § 42-150bb after plaintiff withdrew its foreclosure action.

Defendant raised a special defense that “plaintiff lacked standing … because it was not a person or entity entitled to enforce the note and mortgage.” Plaintiff moved for summary judgment.  “In his objection, the defendant argued that the plaintiff lacked standing to bring this action because the plaintiff cannot prove that it is the holder of the note as it does not have possession of the original note; it only has possession of a copy of the original note, which does not contain any assignment to the plaintiff from [the original lender].”

Plaintiff withdrew its summary judgment motion. Then, “before any hearing on the merits was held, the plaintiff withdrew its foreclosure action as a matter of right pursuant to General Statutes § 52-80.”

Defendant moved for an award of attorney’s fees pursuant to CGS § 42-150bb. The statute provides that a contract provision requiring a consumer to pay a commercial party’s attorney’s fees is, as a matter of law, reciprocal. In other words, if the commercial party can get its attorney’s fees from the consumer, the consumer can get her attorney’s fees from the commercial party, provided the consumer “successfully prosecutes or defends an action or a counterclaim based upon the contract ….”

The trial court denied defendant’s motion. The Appellate Court affirmed.

Defendant’s Argument on Appeal

“The defendant argue[d] that ‘[i]t is only logical to surmise that the [p]laintiff realized that if the court determined that issues raised by [the defendant] went to the merits of the case, it could lose the right to foreclose on the mortgage,’ and, thus, the plaintiff withdrew its case on
the basis of the defendant’s special defense that the plaintiff lacked standing to bring the action.”

Appellate Court Concludes Defendant Failed to Establish a Successful Defense

“In raising his claim on appeal, the defendant has assumed that the plaintiff withdrew its action in response to his special defense. On the basis of this assumption, the defendant argues that he successfully defended the action and, thus, is entitled to attorney’s fees under § 42-150bb. The record, however, does not indicate the reason that the plaintiff withdrew its action; it may have been because of the defendant’s defense, but it may have been for a myriad of other reasons. There was no hearing on the merits, and the defendant offered no evidence at the hearing on the motion for attorney’s fees to prove that the plaintiff withdrew the action in response to his defense. The defendant’s argument is founded on speculation alone. This court will not speculate on what is not in the record.”

Foreclosure Property Valuation Challenge Fails

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The appeal in Salisbury Bank & Trust Co. v. Christophersen involved two adjacent undeveloped parcels of waterfront property in Westport. Defendant borrowed money from plaintiff against the properties, planning to repay the debt when he sold them. Defendant defaulted and plaintiff started a foreclosure action.

The Appellate Court provided a detailed factual background but ultimately there isn’t really much to this advance release opinion.  One of the main issues was whether to value the properties as one two-acre parcel or two one-acre parcels. The record contained a lot of competing evidence. The court chose to treat the properties as one two-acre parcel for three reasons: (i) one of the parcels arguably was subject to a restrictive covenant which “represented a significant cloud on title that adversely affected the ability of the parcel to be marketed as a single building lot”; (ii) “plaintiff’s appraiser credibly testified that the fair market value should be determined as one two-acre lot on the basis of the information he had obtained about the … parcel and the restrictive covenant”; and (iii) “defendant often marketed the property as a single building lot.”

The trial court found that the debt exceeded the value of the property and entered a judgment of strict foreclosure. Defendant appealed. The Appellate Court affirmed.

Defendant’s Argument on Appeal

“On appeal, the defendant claim[ed] that the court abused its discretion by rendering a judgment of strict foreclosure rather than a foreclosure by sale ‘because there is monumental uncertainty as to the value of the property and as a result there is also monumental uncertainty as to whether the debt owed to [the] plaintiff is greater than the value of the property.’ The defendant argue[d], on the basis of his appraiser’s opinion, that the … parcels should be valued as two separate building lots, which would result in a value in excess of the debt owed the plaintiff.”

Appellate Court Concludes that Superior Court Properly Valued the Properties as One Parcel

“On the basis of our review of the record and the [trial] court’s detailed and well reasoned memorandum of decision, we conclude that it did not abuse its discretion by ordering a judgment of strict foreclosure.”

 

 

Appellate Stay Exemption Bites Foreclosure Defendant

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In an advance release opinion issued February 29, 2016, the Connecticut Appellate Court concluded that the new anti perpetual motion machine rule concerning appellate stays in foreclosure cases required it to dismiss the borrower’s appeal.

The first law day in Citigroup Global Markets Realty Corporation v. Christiansen was April 7, 2009. “The judgment was opened and the law day extended five times over the six years that followed the initial judgment of strict foreclosure as a consequence of five bankruptcy petitions filed by [one of] the [mortgagors].” Plaintiff obtained relief from stay in the final bankruptcy. On plaintiff’s motion, the trial court reset the law date for August 25, 2015.

Defendant filed three consecutive motions to open the judgment and extend the law date. The trial court denied all three motions. But, as to the first two, the court sua sponte opened the judgment and extended the law date. The court didn’t do that in respect of the third motion and left the law date at December 1, 2015.

Defendant filed his appeal on November 30, 2015. The December 1 law date came and went without redemption. On December 9, defendant moved the Appellate Court to dismiss the appeal as moot. Defendant did not respond to the motion.

Plaintiff’s Main Argument on its Motion to Dismiss the Appeal

“The plaintiff argue[d] that the court’s denial of the defendant’s third motion to open did not stay the running of the law day, that title to the property accordingly has vested in the plaintiff, and that there is no relief that this court can afford the defendant.”

Appellate Court Concludes Anti Perpetual Motion Machine Rules Rendered Appeal Moot

Practice Book § 61-11(a) is the source of the automatic appellate stay. The section provides that “proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause.” Where the judgment is a judgment of strict foreclosure, this Practice Book rule means that the law date cannot be set sooner than the time to file an appeal — twenty days from entry — because a sooner law date would deprive defendant of his right to appeal.

Defendant also has a right to appeal, within twenty days of entry, a denial of a motion to open the judgment and extend the law date. So, even if the court was denying a mortgagor’s motion to open and extend, it had to sua sponte extend the law date at least twenty-one days so as to not deprive the borrower of the right to appeal the court’s denial of his motion to open and extend. In other words, defendant was more or less guaranteed an unlimited number of twenty-one day extensions of the law date. In First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 762, 966 A.2d 239 (2009), the Appellate Court described this process as “almost the perfect perpetual motion machine.”

To address this problem, Pratice Book § 61-11 was amended effective October 1, 2013. “Practice Book § 61-11(g) applies in this appeal and provides in relevant part: ‘In any action for foreclosure in which the owner of the equity has filed, and the court has denied, at least two prior motions to open or other similar motion, no automatic stay shall arise upon the court’s denial of any subsequent contested motion by that party, unless the party certifies under oath, in an affidavit accompanying the motion, that the motion was filed for good cause arising after the court’s ruling on the party’s most recent motion. . . .’’’

“The defendant’s third motion to open, filed on November 16, 2015, did not have an accompanying affidavit, and, thus, the motion did not meet the requirement contained in § 61-11 (g) to set forth a good cause that arose after the court’s ruling on the defendant’s most recent motion. As was the case with the prior two motions, the defendant’s third motion to open sought an extension of the law day as [defendants] pursued alternatives to foreclosure. Under § 61-11 (g), the denial of that motion to open on November 30, 2015, did not create an automatic appellate stay. Because the defendant failed to exercise his right of redemption on his law day, title to the property vested in the plaintiff after the close of business on December 1, 2015.”

Non-party Lacks Standing to Appeal

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The Connecticut Appellate Court dismissed an appeal because the appellant, who was not a party to the underlying judgment, lacked standing.  The appellant in M.U.N. Capital, LLC v. National Hall Properties, LLC, an advance release opinion to be officially released March 1, 2016, was a lessee of the property plaintiff was foreclosing in the underlying action. Appellant was a named defendant, along with the property owner.  Appellant “claimed, however, that it was not a proper party to the foreclosure action, and, before the judgment of strict foreclosure was rendered … the plaintiff withdrew the action as to [appellant] and proceeded only against the [property owner].”

Subsequently, appellant was defaulted in a summary process action, which terminated its leasehold interest in the property. Appellant apparently believed that it could not undo the summary process default judgment unless it first undid the foreclosure judgment. So, appellant filed, in the foreclosure action, a motion to open and vacate the foreclosure judgment on the ground that plaintiff lacked standing to foreclose.

The trial court dismissed appellant’s motion to open and vacate the foreclosure judgment. Appellant appealed. The Appellate Court dismissed the appeal.

Out of the Ordinary

Normally, this is where I would describe the appellant’s main arguments on appeal. This appeal is different. As the court explained:

Following oral argument in this appeal, we asked the parties to submit simultaneous supplemental briefs addressed to the following: ‘‘1. Whether [appellant], a nonparty to the underlying foreclosure action, had standing to file a motion to open the foreclosure judgment? 2. Whether a nonparty can appeal the dismissal of a motion to open a judgment in a case in which it was not a party? 3. What practical relief can this court provide to [appellant], in this appeal?’’

Appellate Court Concludes Non-party Lacks Standing to Appeal

The court noted that under CGS § 52-263 and Practice Book § 61-1 only a “party” may appeal. ‘‘Ordinarily, the word party has a technical legal meaning, referring to those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons. . . . This definition of party . . . includes only those
who are parties to the underlying action’’ (emphasis original).

“Consequently, because the [appellant] is not a party to the underlying foreclosure judgment in this case, it does not have standing to appeal, and we do not have subject matter jurisdiction over the appeal.”