Sovereign Bank v. Licata , 178 Conn. App. 82 ( 2017 )

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SOVEREIGN BANK v. JAMES LICATA ET AL.
(AC 40186)
Lavine, Prescott and Kahn, Js.*
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant L, who filed counterclaims alleging breach of
contract, negligent misrepresentation, and a violation of the Connecticut
Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.). Thereafter, S
Co. was substituted as the plaintiff. The counterclaims were tried to a
jury, which returned a verdict in part for L, and the foreclosure complaint
was tried to the court, which rendered judgment in part for L in accor-
dance with the jury’s verdict, and a judgment of strict foreclosure and
set the law days. Following the trial court’s decision awarding attorney’s
fees and, inter alia, granting in part S Co.’s motion to set aside the
verdict and for judgment notwithstanding the verdict, S Co. appealed
to this court, challenging the judgment rendered against it on the counter-
claims for negligent misrepresentation and for CUTPA violations. L also
filed a cross appeal challenging the court’s decision to set aside the
verdict as to the breach of contract counterclaim, which was dismissed.
This court reversed in part the judgment of the trial court as to the
counterclaims. Several years later, L filed a motion to determine the
status of the strict foreclosure judgment, in which she claimed that her
equity of redemption was never extinguished because the passage of
the law days had been stayed by the prior appeal. S Co. filed a motion
to correct the record to reflect that a judgment of strict foreclosure had
been rendered, that the law days had commenced thereafter and that
the commencement of the law days had never been stayed or modified.
The trial court denied the motions, and L appealed to this court. There-
after, S Co. filed a motion to dismiss the appeal for lack of subject
matter jurisdiction, claiming that L’s interest in the property had been
extinguished after the law days passed. Held that the appeal was dis-
missed as moot, as there was no practical relief that could be afforded
to L due to the fact that title to the property at issue had long since
passed unconditionally to S Co.: because the record demonstrated that
the trial court rendered judgment of strict foreclosure with respect to
the subject property and that no appeal was ever filed from the judgment
rendered on the foreclosure complaint, any initial appellate stay of
execution that arose when the judgment was rendered expired after the
appeal period for that judgment had run, which was long before the
law days set by the court had passed, and, therefore, because there was
no appellate stay in effect with respect to the foreclosure judgment
when the law days began to run, absolute title to the property transferred
to the plaintiff as a matter of law after all the law days expired; moreover,
because the rules of practice (§§ 61-2 through 61-4) establish that a final
judgment disposing of a counterclaim is separate and distinct from a
judgment on the associated complaint, the foreclosure judgment gave
rise to a distinct appeal period and appellate stay that automatically
terminated upon the expiration of the period to appeal from that judg-
ment, and was not affected by the stay that resulted due to the appeal
from judgment on the counterclaim.
Considered September 7—officially released November 14, 2017
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Tobin, J.,
granted in part the plaintiff’s motion for summary judg-
ment as to liability with respect to the defendant Cyn-
thia Licata; thereafter, the court, Tyma, J., granted the
motion filed by Seven Oaks Partners, LP, to be substi-
tuted as the plaintiff; subsequently, the defendant Cyn-
thia Licata field a counterclaim as against the substitute
plaintiff; thereafter, the counterclaim was tried to the
jury and the foreclosure complaint was tried to the
court, Nadeau, J.; verdict for the defendant Cynthia
Licata on the counterclaim; subsequently, the court,
Nadeau, J., denied the substitute plaintiff’s motion for
remittitur, granted in part the substitute plaintiff’s
motions for judgment notwithstanding the verdict and
to set aside the verdict, and rendered judgment of strict
foreclosure and in part for the defendant Cynthia Licata
on the counterclaim, from which the substitute plaintiff
appealed and the defendant Cynthia Licata cross
appealed to this court, which dismissed the cross
appeal, reversed in part the judgment of the trial court
as to the counterclaim and remanded the case to the
trial court with direction to vacate in part the damages
and attorney’s fees awards; thereafter, the court, Mintz,
J., denied the motion to determine the status of the
foreclosure judgment filed by the defendant Cynthia
Licata and denied the substitute plaintiff’s motion to
correct the record, and the defendant Cynthia Licata
appealed to this court; subsequently, the substitute
plaintiff filed a motion to dismiss the appeal. Appeal dis-
missed.
Howard R. Wolfe in support of the motion.
John F. Carberry in opposition to the motion.
Opinion
PRESCOTT, J. In this protracted foreclosure matter,
the defendant Cynthia Licata1 appeals following the trial
court’s denial of her motion asking the court to clarify
the ‘‘status’’ of a judgment of strict foreclosure that
was rendered orally in open court, more than ten years
earlier, and from the trial court’s order making copies
of the transcripts of the relevant underlying proceedings
a part of the court file. The plaintiff Seven Oaks Part-
ners, LP,2 filed a motion to dismiss the appeal on the
ground that this court lacks subject matter jurisdiction
because the appeal is moot and the decisions from
which the defendant appealed do not constitute appeal-
able final judgments. The defendant opposes the motion
to dismiss. Because we agree that there is no practical
relief that can be afforded to the defendant in this matter
due to the fact that title to the property at issue has
long since passed unconditionally to the plaintiff, we
grant the plaintiff’s motion and dismiss the appeal as
moot.3
The record reveals the following relevant facts and
procedural history. In 2001, James Licata entered into
a loan agreement with Sovereign Bank and executed a
note in the amount of $2.5 million. As security for that
loan, he and the defendant executed a mortgage on two
parcels of property in Greenwich. The first parcel was
owned by the defendant, and the second, a vacant lot
located across the street from the first parcel, was
owned by James Licata.4 As additional security, a guar-
anty for the loan was executed by First Connecticut
Consulting Group, Inc.5
James Licata failed to make timely monthly payments
on the loan and eventually was held in default. Sover-
eign Bank chose to accelerate the loan, demanded pay-
ment in full, and, in February, 2002, commenced this
action seeking a judgment of foreclosure, a deficiency
judgment against James Licata, and enforcement of the
loan guaranty.
The defendant filed an answer and special defenses
in which she alleged that she had executed the mortgage
under duress and that Sovereign Bank had breached an
implied covenant of good faith and fair dealing. James
Licata never filed a responsive pleading and was later
defaulted for failure to disclose a defense.6 In Septem-
ber, 2003, the court rendered summary judgment as to
liability only on the foreclosure complaint with respect
to the defendant.
In September, 2004, the plaintiff, which previously
had purchased and been assigned the subject note and
mortgage, was substituted into the foreclosure action
in place of Sovereign Bank. The defendant, in February,
2005, filed a pleading that asserted a new special
defense and three counterclaims, each premised upon
the plaintiff allegedly having entered into a forbearance
agreement with her. The counterclaims sounded in
breach of contract, negligent misrepresentation, and a
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq. The plain-
tiff objected to the filing of the special defense and
counterclaims, arguing that the defendant needed per-
mission from the court to amend her previous answer.
The plaintiff also filed a motion asking the court to
render a judgment of strict foreclosure.
In March, 2005, the court overruled the plaintiff’s
objection to the special defense and counterclaims. The
plaintiff also unsuccessfully moved to sever the coun-
terclaims from the foreclosure action. The defendant’s
counterclaims were tried to a jury. The plaintiff’s claim
on the foreclosure complaint was tried to the court,
Nadeau, J. On September 27, 2006, the jury returned a
verdict in favor of the defendant on all three counter-
claims and awarded combined damages of $500,000 on
the negligent misrepresentation and breach of con-
tract counts.
On October 5, 2006, the court held a hearing at which
it heard arguments as to whether it could proceed to
rule on the foreclosure complaint in light of the jury’s
verdict on the counterclaims and its responses to
related interrogatories. After hearing arguments from
the parties, the court concluded that it would proceed to
judgment on the foreclosure complaint. After reviewing
the evidence presented, including the appraisals sub-
mitted at trial, the court made a number of findings,
including that the amount of the debt owed was
$2,947,595.84 and that the fair market value of the prop-
erty was $2.5 million. In light of there being insufficient
equity to cover the debt, the court determined, and the
parties agreed, that a judgment of strict foreclosure,
rather than a foreclosure sale, was the appropriate rem-
edy. The court ordered that the law days would com-
mence on February 6, 2007. The court indicated that it
would hold an additional hearing regarding the issue of
attorney’s fees, both as a component of the foreclosure
judgment and as part of the defendant’s damages on
the CUTPA counterclaim.7 The court then proceeded
to hear argument on whether to award punitive dam-
ages with respect to the CUTPA violation. Ultimately,
the court concluded that the defendant was entitled to
an additional $300,000 in punitive damages.
On October 10, 2006, the plaintiff filed postjudgment
motions to reconsider the punitive damages award, to
set aside the jury’s verdict on the counterclaims, for
judgment notwithstanding the jury’s verdict, and for
remittitur. The plaintiff also submitted various memo-
randa of law in support of its motions.
The court heard argument on the postjudgment
motions at a hearing on November 14, 2006, following
which it heard arguments regarding the outstanding
issue of attorney’s fees. Judge Nadeau denied the
motions for reconsideration and for remittitur, but
granted in part the plaintiff’s motion to set aside the
verdict and for judgment notwithstanding the verdict
with respect to the breach of contract count. The court
otherwise denied the postjudgment motions. With
respect to attorney’s fees, the court awarded attorney’s
fees to the plaintiff on the foreclosure complaint and
to the defendant on her CUTPA counterclaim. The court
ended the hearing by confirming with the parties that
it had made all findings necessary for the entry of a
judgment of strict foreclosure, referring to its findings
and the law days set forth at the October 5, 2006 hear-
ing.8 The court took no additional action to memorialize
the judgment, nor was such action expressly requested
by the parties under our rules of practice.9
The plaintiff filed a timely appeal on November 28,
2006, challenging the judgment rendered against it on
the CUTPA and negligent misrepresentation counter-
claims. The defendant filed a cross appeal, which was
later dismissed, that purported to challenge only the
court’s decision to set aside the jury’s verdict with
respect to the breach of contract counterclaim. Sover-
eign Bank v. Licata, 116 Conn. App. 483, 485–86, 977
A.2d 228 (2009), appeal dismissed, 303 Conn. 721, 36
A.3d 662 (2012) (certification improvidently granted).
Neither the appeal nor the cross appeal raised any chal-
lenge to the judgment of strict foreclosure.
In February, 2008, during the pendency of the appeal,
the plaintiff filed a motion with the trial court to termi-
nate the automatic appellate stay. Apparently, the plain-
tiff was concerned that the filing of the appeal or cross
appeal from the judgment on the counterclaims had
effectuated a stay of the proceedings to enforce or
carry out the foreclosure judgment, thus preventing the
running of the law days. On April 15, 2008, following a
hearing, Judge Nadeau granted the motion to terminate
an appellate stay that, for reasons we explain later, had
never actually arisen by virtue of the filing of the appeal
or cross appeal.10
The plaintiff erroneously stated in subsequent
motions filed with the trial court that the defendant’s
cross appeal had been taken from the foreclosure judg-
ment. After the cross appeal was dismissed, the plaintiff
filed motions with the trial court that asked the court
to set new law days, further suggesting that the Febru-
ary, 2006 law days had not passed because of the pen-
dency of the cross appeal. The plaintiff’s assertions
regarding the nature of the cross appeal, however, sim-
ply were inaccurate and not supported by the record.
The appeal and cross appeal forms expressly indicated
that the parties only intended to challenge aspects of
the judgment on the counterclaims, pursuant to which
the plaintiff was awarded compensatory damages for
causes of action distinct from the foreclosure remedy
sought in the complaint. Separate judgments were ren-
dered on the complaint, which was tried to the court,
and the counterclaims, which were tried to the jury.
Furthermore, the motions to set new law days were
marked over and never acted upon by the trial court.
Certainly, any assumptions made by the plaintiff regard-
ing the operation of our rules of practice are not binding
on this court and have no bearing on our present
analysis.
The defendant filed a motion asking this court to
review the trial court’s order terminating the automatic
appellate stay. This court compounded the parties’
apparent misunderstanding regarding the nature of the
purported appellate stay by granting the motion for
review and also granting relief, remanding the matter
to the trial court with direction to reconsider its termi-
nation of stay in light of our decision in Barclays Bank
of New York v. Ivler, 20 Conn. App. 163, 565 A.2d. 252,
cert. denied, 213 Conn. 809, 568 A.2d 792 (1989).11 In
response to our ruling, the trial court issued an order
rescinding its termination of stay. No additional motion
for review was filed from that order.
On August 18, 2009, this court issued an opinion that
resolved the appeal on the counterclaims. We reversed
the judgment rendered on the jury’s verdict as to the
CUTPA counterclaim and vacated the associated puni-
tive damages and attorney’s fee awards. Sovereign
Bank v. Licata, supra, 116 Conn. App. 494–95. We
affirmed, however, the judgment against the plaintiff
on the negligent misrepresentation counterclaim. Id.,
505. We rejected the plaintiff’s claims that the court
improperly denied its motion for remittitur and failed
to sustain its objection to the defendant’s claim for a
jury trial on her counterclaims.12 Id., 507. The Supreme
Court initially granted the plaintiff’s petition for certifi-
cation to appeal from our decision on October 14, 2009;
Sovereign Bank v. Licata, 293 Conn. 935, 981 A.2d 1080
(2009); but that appeal was dismissed in February, 2012,
on the ground that certification had been improvidently
granted. Sovereign Bank v. Licata, 303 Conn. 721, 723,
36 A.3d 662 (2012).13
In July, 2012, the defendant obtained a financial insti-
tution execution for her $500,000 judgment against the
plaintiff. In October, 2012, the plaintiff, who previously
had filed for bankruptcy and was represented by new
counsel, filed a motion to set law days, asserting that
the court had ‘‘withheld setting law days in furtherance
of the strict foreclosure judgment because [an] appeal
was pending’’ and that the plaintiff sought to have the
court set new law days ‘‘to complete the foreclosure
process.’’ The plaintiff also filed a new foreclosure
worksheet accompanied by an affidavit of debt, an affi-
davit of attorney’s fees and an affidavit of appraisal.
No action was taken by the court.
A year later, on October 9, 2013, the plaintiff again
filed a motion to set the law days. At the same time,
the plaintiff filed an application with the court for an
execution of ejectment. The application form indicated
that a foreclosure judgment had been rendered and that
title to the property had transferred to the plaintiff six
years earlier, i.e., on February 12, 2007. On November
19, 2013, the trial court clerk issued the execution for
ejectment. The execution authorized a proper officer
to eject the defendant from the property and to remove
her personal effects. There is no indication, however,
that the plaintiff ever had an officer execute the
ejectment. On December 2, 2013, the court clerk also
issued a certificate of judgment of strict foreclosure.
See General Statutes § 49-16 (requiring that foreclosure
certificate be recorded in land records once title
becomes absolute in mortgagee). The record reveals
no objection by the defendant either to the application
for the execution of ejectment or to the foreclosure cer-
tificate.
No further action, in fact, was taken in this matter
for another three years until July 21, 2016, when counsel
for the defendant filed a caseflow request seeking a
status conference. According to that request, the status
of the foreclosure action needed to be addressed
because the plaintiff was attempting to sell the property.
The defendant asserted that no judgment of foreclosure
had ever been rendered in favor of the plaintiff.
On January 6, 2017, the defendant filed a motion titled
‘‘Motion to Determine Status of Purported Judgment
of Strict Foreclosure.’’ In her motion, the defendant
acknowledged that the plaintiff had ‘‘filed a certificate
of foreclosure, and has treated the property as its own,
including pocketing insurance proceeds paid due to
water damage to the property.’’ The defendant neverthe-
less maintained that her equity of redemption was never
extinguished because ‘‘the setting and passage of law
days . . . never happened in this case, meaning [she]
remains the owner of the property.’’ In support of her
arguments, the defendant largely relied on the plaintiff’s
attempt to terminate the appellate stay in the prior
appeal and its unresolved requests for the court to reset
the law days. The defendant also made reference to the
judgment file submitted by the trial court. Although she
conceded that the judgment file indicated that the court
had rendered a judgment of strict foreclosure in this
matter, she nevertheless believed that it was legally
significant that the judgment file failed to mention
law days.
On January 13, 2017, the plaintiff filed a ‘‘Motion to
Correct Record.’’ In that motion, the plaintiff argued
that Judge Nadeau had rendered a final judgment of
strict foreclosure from the bench at the hearings on
October 5 and November 14, 2006, including setting law
days commencing on February 6, 2007. The plaintiff
argued that the February 6, 2007 law day set forth by
the court as part of the judgment was ‘‘never stayed,
modified, set aside or otherwise changed.’’ The plaintiff
asked the court to correct the judgment file to the extent
that it contained any errors or omissions and submitted
a proposed corrected judgment file. The plaintiff also
filed an objection to the defendant’s motion to deter-
mine status.
The court, Mintz, J., held a hearing on February 14,
2017. The court informed the parties that ‘‘[t]he record
is what the record is’’ and that the court would not
issue what it deemed an ‘‘advisory opinion’’ setting forth
the status of the judgment or resolving ownership of
the property, which the court explained could be deter-
mined from reviewing the record. With respect to the
motion to correct, the court refused to make the pro-
posed corrections to the judgment file.
To ensure a complete record in this matter, however,
the court agreed to make copies of the transcripts from
the October 5 and November 14, 2006 hearings before
Judge Nadeau a part of the court file. All parties stipu-
lated at the hearing regarding the authenticity of the
transcripts to be included in the file. The parties also
helped to identify a number of other irregularities in the
trial court’s file, including several missing or miscoded
documents, which the court granted permission to cor-
rect in accordance with an agreement reached by the
parties during a recess. The defendant filed this appeal
on March 6, 2017, from the court’s order making the
transcripts of the October 5 and November 14, 2006
foreclosure proceedings a part of the court record, and
from its order denying her motion to determine the
status of the foreclosure judgment.
The plaintiff filed the present motion to dismiss on
March 27, 2017, arguing, inter alia, that the appeal
should be dismissed for lack of subject matter jurisdic-
tion because the defendant’s interest in the property
had been extinguished by the passing of law days and,
therefore, the appeal was moot.14 The defendant filed
a timely opposition to the motion to dismiss. With
respect to mootness, the defendant stated as follows:
‘‘[The plaintiff] is correct that if a judgment of strict
foreclosure entered in 2006 and if the law days entered
therein passed, this appeal is moot. That position, how-
ever, begs the question to which [the defendant] seeks
guidance: did a judgment of strict foreclosure ever enter
in this case? Until that question is answered, the issue
of mootness is premature.’’ (Emphasis omitted.)
On July 19, 2017, this court, sua sponte, ordered the
trial court to articulate ‘‘whether a judgment of strict
foreclosure entered in this case and, if so, when did
the judgment enter and did the law days run.’’ Judge
Mintz did not directly answer the articulation request.
Rather, the court recounted findings made by Judge
Nadeau at the October 5 and November 15, 2006 hear-
ings and discussed the proceedings that occurred dur-
ing the previous appeal regarding the appellate stay.15
The court concluded its ‘‘articulation’’ by stating: ‘‘It
appears that if the appellate stay was in effect based
on the appeal of November, 2006, that the law days
have not run.’’ The converse, of course, is also true—
if the appellate stay was not in effect based on the
November, 2006 appeal, the law days have expired.16
We acknowledge that our resolution of the mootness
issue raised in the motion to dismiss is intertwined with
the merits of the defendant’s appeal. More particularly,
as noted by the defendant in her opposition to the
motion, whether this court can afford the defendant
any practical relief regarding the trial court’s actions
challenged on appeal turns on whether a judgment of
strict foreclosure was rendered in this matter, including
the setting of law days, and whether those law days
passed, thereby effectuating the passage of title. The
defendant sought to clarify those issues in her motion,
which the trial court denied. Furthermore, our resolu-
tion of the plaintiff’s motion to dismiss the appeal
requires us to consider the proceedings before Judge
Nadeau as reflected in the October 5 and November
14, 2006 transcripts, which the trial court incorporated
into the record in response to the plaintiff’s motion
to correct.
As the court observed in First National Bank of
Chicago v. Luecken, 66 Conn. App. 606, 610, 785 A.2d
1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851
(2002), we note that ‘‘[w]hile it may generally be pru-
dent, in cases where a motion to dismiss goes to the
heart of the appeal itself, to defer action until after the
parties have fully briefed any interrelated issues, in this
case we grant the plaintiff’s motion to dismiss because
the added delay incident to deferral of the question
would not, under the facts of this case, further our
policy of expediting foreclosure cases whenever possi-
ble.’’ See also Argent Mortgage Co., LLC v. Huertas,
288 Conn. 568, 575–76, 953 A.2d 868 (2008) (resolving
substantive issues raised on appeal that were inextrica-
bly intertwined with question of mootness).
Because mootness implicates our subject matter
jurisdiction; Connecticut Coalition Against Millstone
v. Rocque, 267 Conn. 116, 125, 836 A.2d 414 (2003); it
is a proper basis upon which to seek the dismissal of
an appeal. See Practice Book § 66-8. ‘‘[I]t is not the
province of appellate courts to decide moot questions,
disconnected from the granting of actual relief or from
the determination of which no practical relief can fol-
low. . . . [If] events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot.’’ (Internal quotation marks omitted.) Giaimo v.
New Haven, 257 Conn. 481, 492–93, 778 A.2d 33 (2001).
‘‘In Connecticut, a mortgagee has legal title to the
mortgaged property and the mortgagor has equitable
title, also called the equity of redemption. . . . The
equity of redemption gives the mortgagor the right to
redeem the legal title previously conveyed by per-
forming whatever conditions are specified in the mort-
gage, the most important of which is usually the
payment of money. . . . Under our law, an action for
strict foreclosure is brought by a mortgagee who, hold-
ing legal title, seeks not to enforce a forfeiture but
rather to foreclose an equity of redemption unless the
mortgagor satisfies the debt on or before his law day.’’
(Citations omitted.) Barclays Bank of New York v. Ivler,
supra, 20 Conn. App. 166. Accordingly, ‘‘[if] a foreclo-
sure decree has become absolute by the passing of the
law days, the outstanding rights of redemption have
been cut off and the title has become unconditional in
the plaintiff, with a consequent and accompanying right
to possession. The qualified title which the plaintiff had
previously held under his mortgage had become an
absolute one.’’ (Internal quotation marks omitted.) City
Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16,
25, 179 A. 339 (1935). In other words, if the defendant’s
equity of redemption was extinguished by the passing
of the law days, we can afford no practical relief by
reviewing the rulings of the trial court now challenged
on appeal, as doing so would have no practical effect
or alter the substantive rights of the parties.
In a foreclosure action, an appealable final judgment
exists once the trial court has determined liability and
set forth the essential components of a foreclosure judg-
ment, such as the amount of the debt owed and whether
a foreclosure should be strict or by sale. Essex Savings
Bank v. Frimberger, 26 Conn. App. 80, 80–81, 597 A.2d
1289 (1991). If the judgment is by strict foreclosure, a
final judgment also includes the setting of law days.
See Connecticut National Bank v. L & R Realty, 40
Conn. App. 492, 493, 671 A.2d 1315 (1996) (dismissing
for lack of final judgment appeal taken from strict fore-
closure judgment that was silent as to law days). A
judgment is binding and final for purposes of appeal if
notice of that judgment is given to the parties in open
court. See Practice Book § 63-1 (b).
Here, it is apparent from our review of the transcripts
submitted at the hearing on the defendant’s motion17
that a judgment of strict foreclosure was rendered on
October 5, 2006, in open court, with all parties in atten-
dance. At that hearing, the court made specific and
definite findings regarding the amount of the debt owed
and the value of the property, and it informed the parties
that it was rendering a judgment of strict foreclosure.
The court also expressly set law days to commence on
February 6, 2007.
It is axiomatic that, with limited exceptions, an appel-
late stay of execution arises from the time a judgment
is rendered until the time to file an appeal has expired.
Practice Book § 61-11 (a). If an appeal is filed, any
appellate stay of execution in place during the pendency
of the appeal period continues until there is a final
disposition of the appeal or the stay is terminated. Prac-
tice Book § 61-11 (a) and (e). If no appeal is filed, the
stay automatically terminates with the expiration of the
appeal period.
Here, although both the previous appeal and cross
appeal were taken from the final judgment rendered
on the counterclaims in this matter; no appeal was ever
filed from the judgment rendered on the foreclosure
complaint. Neither party challenged any aspect of the
judgment of strict foreclosure, as reflected in our deci-
sion resolving that prior appeal. Sovereign Bank v.
Licata, supra, 116 Conn. App. 485–86 and n.3. Our rules
of practice unquestionably establish that, for purposes
of filing an appeal, a final judgment disposing of a coun-
terclaim is separate and distinct from a judgment on
the associated complaint. See Practice Book §§ 61-2
through 61-4. For example, a judgment rendered on
an entire counterclaim is an immediately appealable
independent judgment even if an undisposed complaint
remains in the case. Practice Book § 61-2; Ace Equip-
ment Sales, Inc. v. Buccino, 273 Conn. 217, 223 n.4, 869
A.2d 626 (2005). Such a final judgment on a counter-
claim establishes a distinct appeal period from the
appeal period related to the judgment on a complaint
in the same case. See Practice Book §§ 61-2 and 61-3.
As a result of these different appeal periods, different
appellate stays of execution arise, and any automatic
stay that is extended as the result of filing an appeal
from a counterclaim will not stay proceedings to
enforce or carry out the judgment on the complaint.
Such a construction of our rules of practice is consis-
tent with our Supreme Court’s decision in Cronin v.
Gager-Crawford Co., 128 Conn. 401, 23 A.2d 149 (1941).
In that case, which began as an action for strict foreclo-
sure, the trial court eventually rendered a judgment of
foreclosure by sale but denied the plaintiffs’ claim for
a deficiency judgment. Id., 402. The plaintiffs filed an
appeal challenging only that part of the judgment deny-
ing their claim for a deficiency judgment. Id., 403. The
defendant filed a motion to erase the appeal, now a
motion to dismiss, because it was taken from only a
portion of the underlying judgment. Id. Our Supreme
Court, in denying the motion to dismiss, stated: ‘‘We
can see no valid reason why an appeal may not properly
be taken from a portion of a judgment which is so
distinct and severable that, should error be found and
the case remanded for further proceedings, the
remaining portion would be in no way affected, and we
see distinct advantages in allowing such an appeal. The
effect would be that the stay of execution incident to
the appeal would not affect the portion of the judgment
not appealed from and it would become effective with-
out the delay resulting from the appeal.’’ (Emphasis
added.) Id., 404.
Because no appeal was filed from the judgment of
strict foreclosure in this case, any initial appellate stay
of execution that arose when that judgment was ren-
dered expired after the appeal period for that judgment
had run, which was long before the law days set by the
court passed. Further, neither party sought a discretion-
ary stay of execution with respect to the foreclosure
judgment.18 Accordingly, because there was no appel-
late stay in effect when the law days began to run on
February 6, 2007, absolute title to the property trans-
ferred to the plaintiff as a matter of law after all law
days expired.
It is true that the record reflects some later confusion
by the parties, the trial court and this court regarding
whether the foreclosure judgment had been subject to
an appellate stay and whether the law days needed to
be reset. Any such misstatements or errors, however,
did nothing to alter the legal reality—law days passed
and title to the property became absolute in the plaintiff.
Furthermore, the defendant admittedly has known for
years that the plaintiff regarded the property as its own,
and she never objected to the application for an execu-
tion of ejectment, the court’s issuance of a foreclosure
certificate or the plaintiff’s receipt of insurance pro-
ceeds for the property. Accordingly, if there was any
ambiguity in the record regarding the status of this
foreclosure action, it has existed with the knowledge
and acquiescence of the defendant. It was not until the
plaintiff sought to sell the property during the pendency
of its bankruptcy action that the defendant claimed any
need for clarification.
It is also true that the defendant in this case did
not seek to have the trial court open the foreclosure
judgment and restore title in the property to her, but
only sought guidance as to the status of the foreclosure
judgment. Nevertheless, the intent of her motion for
clarification was to call into question whether the law
days had passed and, therefore, whether she retained
some property interest sufficient to prevent the plaintiff
from selling the property. Having determined that a
judgment of strict foreclosure was rendered in favor of
the plaintiff, that the judgment properly included the
setting of law days, and that the law days passed without
violating any appellate stay of execution, we conclude
that it would serve no useful purpose to engage in what
would amount to a purely academic discussion of the
propriety of the trial court’s responses to the parties’
postjudgment motions challenged in the present appeal.
Accordingly, we conclude that this appeal is moot, and
we grant the plaintiff’s motion to dismiss on that basis.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Cynthia Licata is also known and referred to in certain pleadings as
Cynthia Cortese. In addition to Cynthia Licata, the following parties were
named as additional defendants in the underlying foreclosure action: James
Licata, Susan Braun, Edward Stanley and First Connecticut Consulting
Group, Inc. Because Cynthia Licata is the only defendant participating in
the present appeal, we refer to her in this opinion as the defendant and to
the remaining defendants by name.
2
During the pendency of the foreclosure proceedings, the original named
plaintiff, Sovereign Bank, assigned the relevant note and mortgage to Seven
Oaks Partners, LP, which later was substituted as the plaintiff in place of
Sovereign Bank. Our references to the plaintiff are to Seven Oaks Part-
ners, LP.
3
Because we dismiss the appeal on mootness grounds, we do not address
whether the court’s postjudgment rulings constituted appealable final judg-
ments. See State v. Abushaqra, 153 Conn. App. 282, 283 n.2, 100 A.3d 1014
(dismissing appeal on mootness grounds without resolving final judgment
question), cert. denied, 315 Conn. 906, 104 A.3d 757 (2014).
4
James Licata later conveyed his interest in the second parcel to the
defendant.
5
First Connecticut Consulting Group, Inc., was owned by James Licata
and the defendant and specialized in arranging financing for financially
distressed parties. In re First Connecticut Consulting Group, Inc., 340 B.R.
210, 214 (D. Vt. 2006), aff’d, 254 Fed. Appx. 64 (2nd. Cir. 2007).
6
James Licata and First Connecticut Consulting Group, Inc., filed for
bankruptcy protection in June and July, 2002. As a result, the foreclosure
action was stayed as to those parties only. See Practice Book § 14-1.
7
In Benvenuto v. Mahajan, 245 Conn. 495, 496, 715 A.2d 743 (1998), our
Supreme Court held that a judgment of strict foreclosure is an appealable
final judgment even if the court has not made a determination as to an
award of attorney’s fees.
8
In relevant part, the court stated: ‘‘[T]he court points . . . the parties
to the law date which has previously been set for Feb[ruary]—and the court
pronounces the final result of a judgment via strict foreclosure on a debt
which was pronounced at the last hearing.’’ (Emphasis added.)
9
The file contains a case disposition form, JD-CL-37 (Rev. to 2000), com-
pleted by the trial court clerk, indicating that the case was disposed of on
November 15, 2006, by a ‘‘[j]udgment after completed trial, non-jury, for:
other.’’ It is unclear how this notation accurately reflects the disposition
that transpired in this matter. If it was intended to reflect the foreclosure
judgment, which was the only ‘‘non-jury’’ matter, there was a separate box
on the form to indicate a judgment of strict foreclosure. In any event, that
form is a clerical document that is in no manner dispositive of whether a
judgment has been rendered in a particular case or the form of that judgment.
In other words, erroneous coding of a judgment by a clerk cannot transform
the nature of the judgment from that which was actually rendered by the
court.
10
In response to a request for articulation by the defendant as to the basis
for its decision to terminate the stay, the trial court acknowledged, but
failed to credit, the defendant’s argument that nothing could be done to
return title to the defendant even if she prevailed on appeal. The court
explained: ‘‘If that statement were indeed true, it would suggest that this
court’s lifting of the stay was not well pronounced. However, the court felt
that a certain appellate result would reverse the foreclosure this trial court
allowed, requiring a return of the property from the plaintiff to defendant.’’
11
Barclays Bank of New York v. Ivler, supra, 20 Conn. App. 166–67, stands
for the proposition that law days that are set forth in a judgment of strict
foreclosure can have no legal effect if an appellate stay is in effect because
to do so would result in an extinguishment of the right of redemption
pending appeal.
12
Because in the prior appeal the defendant never filed a brief in response
to the claims raised by the plaintiff, or in support of her own cross appeal,
the cross appeal was dismissed, and the appeal was decided on the basis
of the plaintiff’s brief and argument only. Sovereign Bank v. Licata, supra,
116 Conn. App. 486 n.3.
13
The defendant filed a cross appeal with the Supreme Court, which the
plaintiff moved to dismiss. The court granted the motion to dismiss on
February 9, 2010.
14
Although generally a motion to dismiss an appeal must be filed within
ten days of the filing of the appeal, a motion to dismiss based on ‘‘lack of
jurisdiction may be filed at any time.’’ Practice Book § 66-8.
15
With respect to Judge Nadeau’s findings, Judge Mintz stated in relevant
part: ‘‘The court articulates as follows: On November 14, 2006, Judge Nadeau
on page 116 of the transcript stated the following: ‘[H]aving said that, the
court points the parties to the law date which has previously been set for
February and the court pronounces the final result of a judgment via strict
foreclosure on a debt which was pronounced at the last hearing.’ The last
hearing Judge Nadeau is referring to occurred on October 5, 2006. At that
hearing, on page seventy-eight of the transcript, Judge Nadeau determined
the debt to be $2,947,595.84. He went on to find the reasonable value of the
property to have been ‘testified to effectively’ as $2.5 million. On page
seventy-nine of said transcript, Judge Nadeau awarded a $150 title fee, and
an appraiser’s fee of $250. On page eighty-seven [to] eighty-eight, Judge
Nadeau discusses different law days . . . . It appears that Judge Nadeau
entered February 6 as the law date.’’
16
On August 10, 2017, this court ordered the parties to file simultaneous
supplemental memoranda addressing the final judgment issue further in
light of the court’s articulation. Each party complied with our order. Both
parties had a full opportunity to brief the question of mootness in support
of or in opposition to the motion to dismiss.
17
Our reliance on the transcripts in the record may, at first blush, appear
at odds with the defendant’s challenge on appeal to the court’s decision to
include them in the record in the first instance. We do not share that
concern for several reasons. First, the defendant has never challenged the
authenticity of the transcripts or claimed that they fail to represent what
transpired before Judge Nadeau at those hearings. Second, this court is
entitled to take judicial notice of any proceeding between the parties that
occurred and to order the record perfected to the extent necessary to
conduct our review. Practice Book § 60-2; see In re Jah’za G., 141 Conn.
App. 15, 24, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013).
Furthermore, even without direct reference to the transcripts, Judge Mintz,
in his articulation, sets forth all the necessary findings based upon his review
of the transcripts. That articulation and its findings were not challenged by
the parties and, thus, are properly part of the record before this court. See
footnote 15 of this opinion.
18
Certainly, although no automatic stay may arise, any party may request
the imposition of a discretionary stay pending appeal in accordance with
Practice Book § 61-12. Here, the defendant never requested the trial court
to impose a stay of the foreclosure judgment pending resolution of the
counterclaim appeal and cross appeal.