Mase v. Riverview Realty Associates, LLC ( 2021 )


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    AMY MASE v. RIVERVIEW REALTY
    ASSOCIATES, LLC, ET AL.
    (AC 42530)
    Alvord, Prescott and Suarez, Js.
    Syllabus
    The plaintiff sought to foreclose a mortgage on certain real property owned
    by the defendant R Co. At the conclusion of a bench trial, the trial court,
    in an oral decision, rendered a judgment of strict foreclosure against R
    Co. Prior to the expiration of the law day, R Co. appealed, claiming that
    the court erred in denying its motion to dismiss the action, that the
    judgment of strict foreclosure was defective, and that the court’s appoint-
    ment of a receiver was improper. After the appeal was filed, the court
    filed an order, dated as of the date of the trial, in which it stated that
    a judgment of strict foreclosure shall enter and in which it made a
    finding as to the amount of the debt. The defendant did not amend its
    appeal to challenge this order. Held that the appeal was dismissed
    because it was not taken from a final judgment: the trial court, by means
    of its order, dated as of the date of the trial, but not filed until after the
    appeal was filed, effectively issued a nunc pro tunc order, making its
    finding concerning the amount of the debt effective as of the date of
    its judgment of strict foreclosure, but the court’s nunc pro tunc order
    could not rectify the jurisdictional defect that existed at the time the
    appeal was taken; there could be no dispute that a condition precedent
    to the taking of an appeal, namely, a finding with respect to the amount
    of the debt, was made only after the appeal was filed and after the law
    day was set to expire, and, thus, at the time that R Co. filed the appeal,
    a final judgment did not exist, and, accordingly, in the absence of a
    final judgment, this court dismissed the appeal.
    Argued November 19, 2020—officially released November 16, 2021
    Procedural History
    Action to foreclose a mortgage on certain of the
    named defendant’s real property, and for other relief,
    brought to the Superior Court in the judicial district of
    New London, where the court, Cosgrove, J., denied the
    defendants’ motion to dismiss; thereafter, the named
    defendant was defaulted for its failure to comply with
    the court’s order to make payments to a receiver; subse-
    quently, the matter was tried to the court, Hon. Joseph
    Q. Koletsky, judge trial referee; judgment of strict fore-
    closure, from which the named defendant appealed to
    this court. Appeal dismissed.
    Scott M. Schwartz, for the appellant (named defen-
    dant).
    Frank J. Liberty, with whom, on the brief, was Nicho-
    las N. Mingione, for the appellee (plaintiff).
    Opinion
    SUAREZ, J. The defendant Riverview Realty Associ-
    ates, LLC, appeals from the judgment of strict foreclo-
    sure rendered by the trial court in favor of the plaintiff,
    Amy Mase.1 The defendant claims that (1) the court
    erred in denying its motion to dismiss the foreclosure
    action on the ground that the plaintiff failed to provide
    notice of default and acceleration in accordance with
    the terms of the subject note and mortgage, (2) the
    judgment of strict foreclosure was grossly defective for
    several reasons, including but not limited to, the court’s
    failure to determine the fair market value of the subject
    premises and the amount of the debt, and (3) the court’s
    appointment of a receiver was improper for several
    reasons. We dismiss the appeal because it was not taken
    from a final judgment.
    The following procedural history is relevant to the
    issues raised in this appeal. In her amended complaint
    dated May 22, 2015, the plaintiff alleged in count one
    that, on or about September 1, 2011, the defendant,
    a single-member limited liability company owned by
    Albert Farrah, executed a promissory note in the
    amount of $640,000 in favor of 111 Bank Street, LLC
    (111 Bank Street). On or about September 1, 2011, the
    defendant secured the note by mortgaging its interest
    in the subject property, which is located at 109–111
    Bank Street in New London, to 111 Bank Street. On or
    about December 12, 2011, 111 Bank Street assigned its
    interest in the note and mortgage to the plaintiff and
    provided notice of the assignment to the defendant.
    The plaintiff further alleged that, on July 7, 2014, a
    notice of default was sent to the defendant. The plaintiff
    alleged that $218,647.68 was ‘‘presently due and owing,’’
    and that the defendant was ‘‘in arrears in property taxes
    totaling $21,410.86, causing waste of the premises.’’ The
    plaintiff alleged that, pursuant to the notice given on
    July 7, 2014, she had exercised her option ‘‘to declare
    the entire note and mortgage in default and due and
    payable immediately.’’ The plaintiff alleged that the
    defendant Thames Restaurant Group, LLC (Thames), a
    single-member limited liability company also owned
    by Farrah, may claim an interest in the premises as
    a tenant.
    In the second and final count of the complaint, the
    plaintiff relied on her allegations in count one and fur-
    ther alleged that, on December 17, 2014, a notice of
    default for failure to pay taxes was sent to the defen-
    dants pursuant to the notice requirements of the mort-
    gage, as taxes owed prior to January 31, 2015, remained
    unpaid. The plaintiff alleged that ‘‘[t]he failure to cure
    the default resulted in an acceleration of the mortgage’’
    and that ‘‘the entire amount is due and payable immedi-
    ately.’’2 The plaintiff sought strict foreclosure of the
    mortgage, immediate possession of the subject prop-
    erty, a deficiency judgment against the defendant, the
    immediate appointment of a receiver, reasonable attor-
    ney’s fees, costs, and any additional relief awarded by
    the court.
    In their answer to the plaintiff’s initial complaint
    dated August 12, 2014, the defendants admitted that the
    defendant had executed the promissory note in favor
    of 111 Bank Street and that it had secured the note by
    mortgaging its interest in the subject property to 111
    Bank Street. With respect to the remainder of the allega-
    tions set forth in the initial complaint, the defendants
    either denied the allegations or left the plaintiff to
    her proof.
    The defendants raised four special defenses. First,
    the defendants alleged that the defendant had ‘‘tendered
    many payments of the mortgage which were either held
    and not deposited, [were] returned, or, if sent by certi-
    fied or registered mail [with] return receipt requested,
    were refused.’’ Second, the defendants alleged that
    ‘‘[t]he notice of default and acceleration is defective
    and deprives the plaintiff of standing to bring this
    action. The plaintiff herein sent a letter dated July 7,
    2014, purporting to be a notice of default and accelera-
    tion under the loan documents; however, said notice
    was defective since it did not adequately and accurately
    set forth the terms upon which the claimed default
    could be cured.’’ Third, the defendants alleged that the
    plaintiff ‘‘is equitably estopped from claiming a breach
    of the loan documents since her actions contributed to
    and were a significant cause of any claimed defaults
    on the part of the defendants.’’ Fourth, the defendants
    alleged that ‘‘[a]ny default by the defendants was not
    wilful but due to mistake or accident.’’ By way of reply,
    the plaintiff denied each special defense.
    Also, in November, 2015, the defendants filed a
    motion to dismiss the action and a supporting memoran-
    dum of law in support of the motion. They argued that
    the court lacked subject matter jurisdiction over the
    action because the notice of default and acceleration
    sent to the defendant on July 7, 2014, although timely,
    was defective in that it overstated the amount to cure
    the default. The plaintiff filed an objection to the motion
    to dismiss. After the defendants filed a supplemental
    memorandum of law in support of their motion to dis-
    miss, the court, Cosgrove, J., denied the motion to dis-
    miss.
    In October, 2014, the plaintiff filed a motion for the
    appointment of a receiver, and the defendants objected
    to the motion. The plaintiff argued that the appointment
    was a matter of right under the terms of the note and
    mortgage in light of the defendant’s failure to make
    payments on the note or to pay property taxes for more
    than two years. The court granted the motion.3 In
    December, 2016, the court, Hon. Joseph Q. Koletsky,
    judge trial referee, amplified the receiver’s powers ‘‘so
    that the receiver must forthwith commence eviction
    from the business entities that are defendants in this
    case . . . .’’
    On May 3, 2017, the plaintiff filed a motion requesting
    that the receiver disburse a portion of the funds held in
    escrow for the payment of property taxes. The plaintiff
    represented therein that the defendant had failed to
    make court-ordered payments to the receiver and had
    failed to pay property taxes as required pursuant to the
    terms of the mortgage. On that same date, the plaintiff
    filed a motion for judgment on the grounds that the
    defendant had been ordered to make payments to the
    receiver in the amount of $4200 per month, no payments
    had been made in 2017, and the plaintiff was entitled
    to judgment in her favor as a consequence of the defen-
    dant’s failure to comply with the court’s order. At a
    hearing on June 14, 2017, Judge Koletsky entered a
    default against the defendant for its failure to comply
    with the court’s order to make payments to the receiver.
    In January, 2017, Thames filed a notice of bankruptcy
    filing under chapter 7 of the United States Bankruptcy
    Code. On June 28, 2017, Thames filed a notice of bank-
    ruptcy filing under chapter 11 of the United States Bank-
    ruptcy Code. On September 11, 2018, the plaintiff filed
    a notice that the United States Bankruptcy Court had
    granted her relief from the automatic stay provision,
    thereby permitting her to exercise her rights, if any,
    with respect to the subject property. On that same date,
    the plaintiff, relying on the order of the bankruptcy
    court, filed a motion to appoint herself as a permanent
    receiver with respect to the subject property. On Octo-
    ber 29, 2018, over the defendants’ objection, Judge
    Koletsky granted the plaintiff’s proposed order appoint-
    ing her as the receiver and delineating her rights as
    receiver.
    A trial took place before Judge Koletsky on January
    9, 2019. At the trial, the plaintiff presented her own
    testimony, as well as the testimony of Shannon Heap, a
    certified public accountant. The plaintiff also presented
    documentary evidence. At the conclusion of the trial,
    the plaintiff’s attorney moved for a judgment of strict
    foreclosure against the defendant. The plaintiff’s attor-
    ney asked the court to ‘‘keep the case open’’ with
    respect to its action against Thames so that, once
    Thames’ bankruptcy was ‘‘closed,’’ the plaintiff could
    move to eject that entity from the subject premises. At
    the conclusion of the trial on January 9, 2019, the court,
    by means of a decision announced orally, rendered ‘‘[a]
    [j]udgment of strict foreclosure’’ against the defendant
    and in favor of the plaintiff. The court set a law day of
    January 30, 2019.
    On January 28, 2019, prior to the expiration of the
    law day, the defendant timely filed the present appeal.
    On February 1, 2019, after the appeal was filed, the
    court filed an order, which was dated January 9, 2019,
    and made part of the court file, in which it stated:
    ‘‘Following a hearing on the matter in which testimony
    was heard, judgment of strict foreclosure shall enter in
    favor of the plaintiff against [the defendant]. The
    amount of the debt is $1,159,902.32. The defendant’s
    law day is set for January 30, 2019.’’ This was the first
    time that the court made a finding as to the amount of
    the debt. Following the court’s order, the defendant did
    not attempt to challenge the court’s order by amending
    the present appeal; see Practice Book § 61-9; or by seek-
    ing permission to file a late appeal for good cause
    shown. See Practice Book § 60-2 (5).
    The court’s judgment file, which was filed on August
    20, 2019, sets forth the following facts.4 It states that
    ‘‘[t]he court entered judgment of strict foreclosure at
    the hearing [on January 9, 2019], setting a law day for
    [the defendant] . . . and, additionally, finding the judg-
    ment debt against [the defendant].’’ The judgment file
    also states that ‘‘the court finds that the plaintiff has
    proven her entitlement to damages, as against [the
    defendant], in the amount of $1,159,902.32, with the law
    day as January 30, 2019. Accordingly, judgment of strict
    foreclosure shall enter by order as of January 9, 2019,
    in such amount, pursuant to such written opinion dated
    that date but filed by the court by ‘Recordation of Filing’
    on February 1, 2019 . . . .’’
    After this court heard oral argument in the present
    appeal, we sua sponte questioned whether the appeal
    was taken from an appealable final judgment in light
    of the fact that, at the time the appeal was taken, the
    court had not determined the amount of the debt. ‘‘We
    [may raise], on our own motion, the question of whether
    the plaintiff’s appeal has been taken from a final judg-
    ment. . . . The lack of a final judgment implicates the
    authority of this court to hear the appeal because it is
    a jurisdictional defect. . . . Thus, even where the
    appellee fails to bring to our attention the lack of a
    final judgment, either by motion to dismiss or in its
    brief, or at oral argument, we must, nonetheless, act sua
    sponte.’’ (Citation omitted; footnote omitted; internal
    quotation marks omitted.) Cruz v. Gonzalez, 
    40 Conn. App. 33
    , 35, 
    668 A.2d 739
     (1995).
    As a result of our final judgment concerns, we
    ordered the parties to file supplemental briefs ‘‘setting
    forth reasons, if any, why the appeal should not be
    dismissed for the lack of an appealable final judgment
    in light of the fact that the defendant . . . filed the
    present appeal on January 28, 2019, and the [trial] court
    did not determine the amount of the debt until February
    1, 2019.’’ We have received the parties’ supplemental
    briefs, and we have carefully considered the arguments
    raised therein in our resolution of the present appeal.
    In her supplemental brief, the plaintiff argues that
    the present appeal should be dismissed for lack of a
    final judgment.5 The defendant does not dispute that,
    at the time that the trial court rendered its judgment
    of strict foreclosure on January 9, 2019, it ‘‘did not have a
    finding of the mortgage debt, necessary for redemption,
    nor a determination of [the] value of the subject prop-
    erty.’’ The defendant acknowledges that the court’s
    judgment ‘‘was incomplete for lack of a determination
    of the judgment debt.’’ The defendant also does not
    dispute that the court did not determine the amount of
    the debt until it issued its order on February 1, 2019,
    after it had filed the present appeal. Finally, the defen-
    dant does not dispute that, at the time that it filed its
    appeal, it had knowledge of the court’s January 9, 2019
    ruling, which it now characterizes as a ‘‘defective judg-
    ment’’ of strict foreclosure.
    Despite acknowledging the foregoing procedural
    facts, the defendant urges us to conclude that the appeal
    should not be dismissed. On the one hand, the defendant
    suggests that this court should treat the appeal as having
    been taken from a final judgment because the court
    ‘‘backdated’’ its order to the date of its initial ruling,
    thereby giving its ruling ‘‘the appearance of a full judg-
    ment . . . .’’ Likewise, the defendant argues that the
    court’s docket, ‘‘on its face,’’ suggests that the court
    had rendered an appealable final judgment on January
    9, 2019.6 On the other hand, the defendant argues that
    ‘‘[t]he postappeal order should be considered a nullity.’’
    In this regard, the defendant asserts that the court did
    not provide the parties notice of the order that it filed
    on February 1, 2019. Thus, the defendant argues, the
    court’s order of February 1, 2019, did not give rise
    to a new appeal period. In light of the foregoing, the
    defendant argues that if it did not file an appeal on
    January 29, 2019, it would have ‘‘risked that the plaintiff
    would file a certificate of foreclosure, and thereafter
    take the position that no [finding of debt] was required
    . . . and file a certificate of foreclosure in the land
    records. Such circumstances could have precluded a
    later appeal based on the running of the law days,
    claimed vesting of title, and filing of the certificate of
    foreclosure.’’7
    It is well settled that, ‘‘[i]n a foreclosure action, an
    appealable final judgment exists once the trial court
    has determined liability and set forth the essential com-
    ponents of a foreclosure judgment, such as the amount
    of the debt owed and whether a foreclosure should be
    strict or by sale. . . . If the judgment is by strict fore-
    closure, a final judgment also includes the setting of
    law days. . . . A judgment is binding and final for pur-
    poses of appeal if notice of that judgment is given to
    the parties in open court. See Practice Book § 63-1
    (b).’’ (Citations omitted.) Sovereign Bank v. Licata, 
    178 Conn. App. 82
    , 98, 
    172 A.3d 1263
     (2017). It also is well
    settled that a judgment of foreclosure constitutes an
    appealable final judgment only after the court has deter-
    mined the amount of the debt. See, e.g., Danzig v.
    PDPA, Inc., 
    125 Conn. App. 254
    , 261, 
    11 A.3d 153
     (2010),
    cert. denied, 
    300 Conn. 920
    , 
    14 A.3d 1005
     (2011), cert.
    denied, 
    564 U.S. 1044
    , 
    131 S. Ct. 3077
    , 
    180 L. Ed. 2d 899
    (2011); Capp Industries, Inc. v. Schoenberg, 
    104 Conn. App. 101
    , 109 n.5, 
    932 A.2d 453
    , cert. denied, 
    284 Conn. 941
    , 
    937 A.2d 696
     (2007), and cert. denied, 
    284 Conn. 941
    , 
    937 A.2d 697
     (2007); see also, e.g., Morici v. Jarvie,
    
    137 Conn. 97
    , 103, 
    75 A.2d 47
     (1950).
    As our discussion of the unique procedural history
    of this case reflects, the trial court, by means of its
    order that was dated January 9, 2019, but was filed on
    February 1, 2019, effectively issued a nunc pro tunc
    order, making its finding concerning the amount of the
    debt effective as of the date of its judgment of strict
    foreclosure, January 9, 2019.8 As we evaluate the issue
    of whether we have jurisdiction over this appeal, how-
    ever, we do not consider the court’s subsequent order,
    including whether it somehow misled the defendant.9
    This is because we are obligated to evaluate whether
    this court had jurisdiction over the defendant’s appeal
    at the time that it was taken. Thus, the trial court’s
    nunc pro tunc order could not rectify the jurisdictional
    defect that existed at the time the appeal was taken.
    As this court has explained, ‘‘[b]ecause a final judgment
    is a condition precedent to the taking of an appeal . . .
    we do not ask if jurisdiction arose at some time during
    the appeal, but determine only whether we had jurisdic-
    tion over the appeal at the time it was taken.’’ (Citation
    omitted; emphasis altered.) Annecharico v. Patterson,
    
    38 Conn. App. 338
    , 339–40, 
    660 A.2d 880
     (1995).
    In the present case, there can be no dispute that a
    condition precedent to the taking of an appeal—namely,
    a finding with respect to the amount of the debt—was
    made only after the appeal was filed and after the law
    day was set to expire. Thus, we conclude that, at the
    time that the defendant filed the appeal on January 28,
    2019, a final judgment did not exist. In the absence of
    a final judgment, the proper action by this court is to
    dismiss the appeal. See, e.g., Quinn v. Standard-Knapp,
    Inc., 
    40 Conn. App. 446
    , 448–49, 
    671 A.2d 1333
     (1996).
    The appeal is dismissed.
    In this opinion the other judges concurred.
    1
    The plaintiff also named Thames Restaurant Group, LLC, as a defendant
    in the underlying foreclosure action, but that party is not participating in
    this appeal. Unless otherwise indicated, the defendant in this opinion refers
    to Riverview. Our use of the defendants in this opinion refers to Riverview
    and Thames Restaurant Group, LLC.
    2
    The plaintiff attached as exhibits to her amended complaint a copy of
    the note, a copy of the mortgage, a copy of the assignment of the note and
    mortgage, a copy of the notice of assignment sent to the defendant, and a
    copy of the July 7, 2014 notice of default sent to the defendant.
    3
    The receiver, Northeast Property Group, Inc., was discharged as receiver
    per order of the court on September 14, 2018.
    4
    Attached to the judgment file is a copy of the court’s order dated January
    9, 2019. Also attached to the judgment file is a document titled ‘‘Recordation
    of Filing,’’ which reflects that the order, though dated January 9, 2019, was,
    as is stated in the judgment file, not actually filed until February 1, 2019.
    The defendant has included these filings in the appendix to its principal
    appellate brief.
    5
    The plaintiff also asserts an alternative jurisdictional ground that, she
    argues, requires the appeal to be dismissed. Specifically, she argues that
    the appeal is moot because the law days have expired and ‘‘the decree of
    the trial court became absolute . . . .’’ The plaintiff thereby argues that
    title in the subject property has vested unconditionally in her. The plaintiff’s
    argument implicates the familiar principle of law that, ‘‘[i]n Connecticut,
    the passage of the law days in an action for strict foreclosure extinguishes
    a mortgagor’s equitable right of redemption and vests absolute title in the
    encumbrancer.’’ U.S. Bank National Assn. v. Rothermel, 
    339 Conn. 366
    , 375,
    A.3d      (2021). We also note that ‘‘[i]t is a [well settled] general rule that
    the existence of an actual controversy is an essential requisite to appellate
    jurisdiction; it is not the province of appellate courts to decide moot ques-
    tions, disconnected from the granting of actual relief or from the determina-
    tion of which no practical relief can follow. . . . An actual controversy
    must exist not only at the time the appeal is taken, but also throughout the
    pendency of the appeal.’’ (Internal quotation marks omitted.) Ocwen Federal
    Bank, FSB v. Charles, 
    95 Conn. App. 315
    , 325, 
    898 A.2d 197
    , cert. denied,
    
    279 Conn. 909
    , 
    902 A.2d 1069
     (2006).
    We are not persuaded by the plaintiff’s mootness argument. As the plaintiff
    correctly has acknowledged elsewhere in her supplemental brief to this
    court, the trial court did not find the amount of the debt, which is a necessary
    component of a valid strict foreclosure judgment, until after the law days had
    expired. Because a legally enforceable final judgment of strict foreclosure
    did not exist prior to the expiration of the law days, we disagree with the
    plaintiff that the expiration of the law days that were set by the court on
    January 9, 2019, resulted in the vesting of title in the plaintiff, thereby
    rendering this appeal moot.
    6
    We observe that, consistent with the defendant’s argument, the court’s
    docket reflects that the order filed by the court on February 1, 2019, appears
    as having been filed on January 9, 2019, the date on which the court orally
    rendered its judgment of strict foreclosure. The court’s judgment file, how-
    ever, reflects that the order was not filed until February 1, 2019. See footnote
    4 of this opinion.
    7
    In support of this argument, the defendant refers to the argument
    advanced by the plaintiff in its appellate brief that the trial court’s failure
    to determine the amount of the debt did not give rise to a defective judgment
    because, due to a pending bankruptcy action, the defendant lacked the
    financial ability to redeem the debt.
    8
    The defendant has not appealed from the issuance of the nunc pro tunc
    order, and, thus, the propriety of the order is not before us. Nonetheless,
    we observe that ‘‘[a] nunc pro tunc entry is an entry made now of something
    actually previously done to have effect of the former date. ‘Nunc pro tunc’
    literally means ‘now for then.’ ’’ (Footnote omitted.) 56 Am. Jur. 2d 99,
    Motions, Rules, and Orders § 62 (2020). ‘‘A nunc pro tunc order generally
    is used to correct a ministerial or clerical error or oversight and cannot be
    used to correct a judicial error, or cure a jurisdictional defect.’’ (Footnotes
    omitted.) Id., p. 100.
    9
    The defendant suggests, but does not argue, that good cause existed for
    its failure to appeal from the final appealable judgment that resulted once
    the court determined the amount of the debt. Mindful of the unique proce-
    dural facts of the present case, we observe that the dismissal of the present
    appeal does not interfere with the defendant’s right to file a motion for
    permission to file a late appeal from the court’s judgment, encompassing
    its order filed on February 1, 2019. Such a motion would afford this court
    a procedurally appropriate opportunity to consider whether an untimely
    appeal should be permitted for good cause shown.
    ‘‘The rules of practice vest broad authority in the Appellate Court for the
    management of its docket.’’ (Internal quotation marks omitted.) Alliance
    Partners, Inc. v. Voltarc Technologies, Inc., 
    263 Conn. 204
    , 210, 
    820 A.2d 224
     (2003). In the absence of a jurisdictional barrier, this court has the
    discretion to determine whether to permit a late appeal to be heard. Id.;
    see also Georges v. OB-GYN Services, P.C., 
    335 Conn. 669
    , 687–89, 
    240 A.3d 249
     (2020). This court may ‘‘order that a party for good cause shown may
    file a late appeal . . . .’’ Practice Book § 60-2 (5). ‘‘[F]or . . . good cause
    shown, the court in which the appellate matter is pending may suspend the
    requirements or provisions of any of these rules on motion of a party . . . .’’
    Practice Book § 60-3.