Rockstone Capital, LLC v. Sanzo , 175 Conn. App. 770 ( 2017 )

 ROCKSTONE CAPITAL, LLC v.JOHN
SANZO ET AL.
(AC 38176)
DiPentima, C. J., and Beach and Bishop, Js.
Syllabus
Pursuant to statute (§ 52-352b [t]), a homestead, owner-occupied real prop-
erty used as a primary residence, is exempt from the enforcement of a
money judgment up to the value of $75,000, less the amount of any
consensual lien.
The plaintiff, pursuant to a forbearance agreement executed by the parties
that included a waiver of the homestead exemption in § 52-352b (t),
sought to foreclose judgment liens on certain of the defendants’ real
property after the defendants had defaulted on their mortgage payments.
The plaintiff thereafter amended its complaint to seek foreclosure of
the defendants’ mortgage instead of the judgment liens. Following a
trial, the court issued a memorandum of decision concluding that the
forbearance agreement was void as against public policy in that the
defendants had a right as a matter of law to file a claim for a homestead
exemption, and the plaintiff could not foreclose on the mortgage. The
court then rendered judgment for the plaintiff on the judgment liens.
The plaintiff appealed to this court claiming that the trial court improp-
erly denied the foreclosure of its mortgage, which was a consensual
lien, and allowed the defendants to assert the homestead exemption to
its judgment liens that were no longer part of the mortgage foreclosure
action. The defendants cross appealed, claiming that the court erred in
rendering a judgment of foreclosure on the judgment liens because
the plaintiff amended its complaint to seek foreclosure solely on the
mortgage. Held:
1. The court’s judgment denying the plaintiff’s request for foreclosure on
the mortgage constituted an appealable final judgment, giving the court
jurisdiction over the plaintiff’s appeal; although the court failed to deter-
mine the amount of debt and the method of foreclosing on the judgment
liens, it determined that the forbearance agreement was void and refused
to render judgment of foreclosure on the mortgage, thus denying the
relief requested in the plaintiff’s operative complaint.
2. The trial court improperly denied the foreclosure of the plaintiff’s mort-
gage: as the mortgage was a consensual lien in that the defendants
provided it to secure their obligations under the forbearance agreement
in exchange for the plaintiff’s agreement to forbear collection activities
on the judgment liens as long as the defendants complied, the homestead
exemption did not apply pursuant to § 52-352b (t); furthermore, the trial
court erred in relying on the homestead exemption waiver to determine
that the mortgage was void as against public policy because the plaintiff
was not relying on the waiver of the homestead exemption in the mort-
gage, but rather, § 52-352b (t) expressly provides that the homestead
exemption is not applicable to consensual liens, which included the
mortgage here.
3. The court’s judgment foreclosing on the judgment liens constituted an
appealable final judgment, giving the court jurisdiction over the defen-
dants’ cross appeal; the claim raised in the cross appeal was inextricably
intertwined with the claim raised in the plaintiff’s appeal, as both parties
contended that the court erred in rendering a judgment of foreclosure on
the judgment liens since the operative complaint did not seek that relief.
4. The trial court improperly rendered a judgment of foreclosure on the
judgment liens in favor of the plaintiff because the plaintiff amended
its complaint to seek to foreclosure solely on the mortgage and the
judgment liens claim was no longer in the plaintiff’s operative complaint;
because an amended complaint operates as a withdrawal of an original
complaint, neither party pleaded, briefed or argued that the trial court
should render judgment of foreclosure on the judgment liens.
Argued March 16—officially released August 22 2017
Procedural History
Action to foreclose judgment liens on certain real
property owned by the named defendant et al., and for
other relief, brought to the Superior Court in the judicial
district of Fairfield, where the named defendant et al.
were defaulted for failure to plead; thereafter, the defen-
dant The Housatonic Lumber Company was defaulted
for failure to plead; subsequently, the court, Hon.
Michael Hartmere, judge trial referee, granted the plain-
tiff’s request to file an amended complaint; thereafter,
the matter was tried to the court, Hon. Richard P.
Gilardi, judge trial referee; judgment in part for the
plaintiff, from which the plaintiff appealed and the
named defendant et al. cross appealed to this court;
subsequently, the court, Hon. Richard P. Gilardi, judge
trial referee, issued an articulation of its decision.
Reversed; further proceedings.
Houston P. Lowry, with whom, on the brief, were
Craig S. Taschner and Dale M. Clayton, for the appel-
lant-appellee (plaintiff).
Matthew K. Beatman, with whom, on the brief, was
John L. Cesaroni, for the appellees-appellants (named
defendant et al.).
Opinion
DiPENTIMA, C. J. The plaintiff, Rockstone Capital,
LLC, appeals and the defendants, John Sanzo and Maria
Sanzo,1 cross appeal from the judgment of the trial
court. On appeal, the plaintiff claims that the trial court
erred in not foreclosing its mortgage on the defendants’
property and in applying the homestead exemption to
its judgment liens, for which foreclosure was not
sought. In their cross appeal, in part agreeing with the
plaintiff, the defendants claim that the trial court erred
in entering a judgment of foreclosure in favor of the
plaintiff as to the judgment liens. As to the plaintiff’s
appeal, we reverse the judgment of the trial court that
determined that the mortgage was void as against public
policy and remand the matter for further proceedings
in accordance with law. We also reverse the judgment
of the trial court with respect to the defendants’
cross appeal.
The trial court decided this case in part on the follow-
ing stipulated facts. ‘‘The defendants are individuals
with their primary residence located at 59 Crossbow
Lane in Monroe . . . ([property]). On or about June
21, 2000, Fleet National Bank (Fleet) commenced an
action against the defendants and, on August 9, 2000,
Fleet obtained a judgment in the amount of $103,535.57
plus costs of $274.40 and lawful interest. Thereafter,
on April 19, 2001, Fleet recorded two judgment liens
on the [property] against each of the defendants.
‘‘On October 23, 2007, the successor to Fleet, Bank
of America, assigned all of its interest in the judgment
to the plaintiff. Thus, the plaintiff is the current holder
and owner of the judgment and of the liens against
the [property].’’
On February 28, 2008, after the defendants had
defaulted on their payments, the plaintiff commenced
this action to foreclose the judgment liens on the prop-
erty. Thereafter, on April 26, 2009, the parties entered
into a forbearance agreement. The forbearance
agreement provided that the defendants would pay
additional interest and fees as well as the amount of
the judgment liens over a period of time in exchange
for the plaintiff’s agreement to refrain from collection
activities. The forbearance agreement also provided
that a mortgage would be placed on the defendants’
property, securing the defendants’ obligations under
the forbearance agreement. The agreement further pro-
vided that the plaintiff would refrain from continuing
its action for foreclosure on the judgment liens as long
as the defendants strictly complied with the modified
payment schedule.2
After the defendants failed to make certain payments
under the forbearance agreement, the plaintiff pro-
ceeded with its foreclosure action on the judgment
liens. Thereafter, the plaintiff requested permission to
amend its complaint to foreclose on the mortgage
instead of the judgment liens. On May 13, 2014, the
defendants filed an objection to the plaintiff’s request
for leave to amend its complaint.
On May 15, 2014, the trial court, Hon. Michael Hart-
mere, judge trial referee, issued an order granting the
plaintiff’s request to amend its complaint. At that time,
the court also issued an order overruling the defendants’
objection to the plaintiff’s request for leave to amend
its complaint. The plaintiff’s amended complaint sought
a strict foreclosure of the mortgage and not the judg-
ment liens, hereinafter referred to as the operative com-
plaint. The defendants then filed an answer to the
operative complaint and, by way of special defense,
claimed that the mortgage was void as against public
policy because the forbearance agreement amounted
to a waiver of the homestead exemption set forth in
General Statutes § 52-352b (t).3
On December 12, 2014, the trial court, Hon. Richard
P. Gilardi, judge trial referee, concluded that the for-
bearance agreement was valid and rendered a judgment
of foreclosure. Both parties moved to reargue and
reconsider that ruling. On July 15, 2015, the trial court
issued a corrected memorandum of decision concluding
that the forbearance agreement was void as against
public policy such that the plaintiff could not foreclose
on the mortgage. The court also concluded that the
defendants had a right as a matter of law to file a claim
for a homestead exemption and rendered judgment for
the plaintiff on the judgment liens. It did not determine
the amount of the debt and whether foreclosure of
the judgment liens would be by strict foreclosure or
foreclosure by sale.
On July 28, 2015, the plaintiff appealed from the trial
court’s July 15, 2015 decision, claiming that it improp-
erly denied the foreclosure of its mortgage in order to
allow the defendants to assert the homestead exemp-
tion against its judgment liens that were not part of
the mortgage foreclosure action. Shortly thereafter, on
August 7, 2015, the defendants filed a cross appeal
claiming that the court improperly rendered judgment
on the judgment liens because the plaintiff amended
its complaint to seek foreclosure solely of the mortgage.
During the pendency of this appeal, the parties were
ordered to appear for a hearing before this court to
give reasons, if any, as to why the appeal and cross
appeal should not be dismissed for lack of a final judg-
ment because the trial court had not yet determined
the amount of debt or whether foreclosure should be
strict or by sale. See Essex Savings Bank v. Frimberger,
26 Conn. App. 80, 81, 597 A.2d 1289 (1991). After that
hearing, we ordered the trial court to articulate its ruling
as to the following: ‘‘1. As the amended complaint
sought foreclosure of the mortgage, what was the
court’s decision on the amended complaint? 2. On what
basis did the court hold ‘judgment is entered on the
judgment lien’? 3. Did the court enter judgment on both
judgment lien(s)? 4. In whose favor did the trial court
enter judgment on the judgment lien(s)?’’
With respect to the first question, the court articu-
lated that it ‘‘denied foreclosure of the mortgage pursu-
ant to the foreclosure agreement because the terms of
the forbearance agreement included a waiver of the
homestead [exemption].’’ In addressing the second
question, the court articulated that once it ‘‘voided the
forbearance agreement and underlying mortgage, the
remaining matter to be resolved involved judgment on
the original judgment liens. The court, therefore, turned
to the issue of whether judgment should be granted
on the judgment liens.’’ Next, in response to the third
question, the court articulated that ‘‘[i]t was the court’s
intention to preserve the defendants’ right to the home-
stead exemption while preserving the plaintiff’s right
to sue on the original judgment liens. Therefore, the
court voided the forbearance agreement and the mort-
gage within the agreement, but entered judgment in
favor of the plaintiff on both of the original judgment
liens.’’ (Footnote omitted.) Finally, with respect to the
fourth question, the court articulated that it ‘‘entered
judgment in favor of the plaintiff on both of the judg-
ment liens.’’
In light of the trial court’s articulation, this court
ordered the parties to address the final judgment ques-
tion in their briefs on the merits of the appeal and
cross appeal.
I
THE PLAINTIFF’S APPEAL
A
We first must consider whether the court’s judgment
denying the request for foreclosure on the mortgage
constitutes an appealable final judgment. The plaintiff
claims that the court’s decision is a final judgment in
that it denied the relief requested in its operative com-
plaint, namely, the foreclosure of the mortgage. The
defendants argue that there was not a final judgment
as the court has not determined the amount of the debt
and whether foreclosure on the judgment liens should
be by strict foreclosure or foreclosure by sale. We con-
clude that this appeal was taken from a final judgment.
We have long held that ‘‘[t]he lack of a final judgment
implicates the subject matter jurisdiction of an appel-
late court to hear an appeal. A determination regarding
. . . subject matter jurisdiction is a question of law
[over which we exercise plenary review]. . . . As our
Supreme Court has explained: To consider the [plain-
tiff’s] claims, we must apply the law governing our
appellate jurisdiction, which is statutory. . . . The leg-
islature has enacted General Statutes § 52-263, which
limits the right of appeal to those appeals filed by
aggrieved parties on issues of law from final judgments.
Unless a specific right to appeal otherwise has been
provided by statute, we must always determine the
threshold question of whether the appeal is taken from
a final judgment before considering the merits of the
claim. . . . Further, we have recognized that limiting
appeals to final judgments serves the important public
policy of minimizing interference with and delay in the
resolution of trial court proceedings.’’ (Footnote omit-
ted; internal quotation marks omitted.) J & E Invest-
ment Co., LLC v. Athan, 131 Conn. App. 471, 482–83,
27 A.3d 415 (2011).
Moreover, this court previously has determined that
‘‘[a] judgment of foreclosure constitutes an appealable
final judgment when the court has determined the
method of foreclosure and the amount of the debt.’’ Id.,
483; see also Essex Savings Bank v. Frimberger, supra,
26 Conn. App. 80–81 (in foreclosure action, there is
no appealable final judgment until court determines
amount of debt and decides whether foreclosure should
be strict or by sale). In Morici v. Jarvie, 137 Conn. 97,
103, 75 A.2d 47 (1950), the court noted: ‘‘Any judgment,
to be adequate as such, must respond to the prayers
for relief. . . . In a foreclosure action, the judgment
must either find the issues for the defendant or deter-
mine the amount of the debt, direct a foreclosure and
fix the law days.’’ (Citations omitted; emphasis added.)
In the present case, the plaintiff argues that the
court’s decision is final in that it denied the relief
requested in its operative complaint, namely, the fore-
closure of the mortgage, in favor of the defendants. See
Morici v. Jarvie, supra, 137 Conn. 103. In turn, the
defendants rely on Essex Savings Bank, to claim that
there is not a final judgment because the court has not
determined the amount of the debt and the method of
foreclosing on the judgment liens.
In Essex Savings Bank, supra, 26 Conn. App. 80,
the trial court rendered summary judgment against the
defendants in favor of a creditor, without determining
damages pertaining to the amount of the debt or
whether the foreclosure was to be strict or by sale. Id.This court, sua sponte, dismissed the appeal because
we determined that a judgment rendered only on the
issue of liability without resolving the issue of damages
‘‘is interlocutory in nature and is not a final judgment
from which an appeal lies.’’ Id., 80–81.
The facts of this case are distinguishable from Essex
Savings Bank, in that the plaintiff here is challenging
the court’s failure to render judgment in its favor on
the mortgage.4 The court found the issues for the defen-
dants on the operative complaint. Practice Book § 61-
2 (‘‘[w]hen judgment has been rendered on an entire
complaint . . . such judgment shall constitute a final
judgment.’’). Specifically, the trial court concluded that
the forbearance agreement was void as against public
policy such that the plaintiff could not foreclose on the
mortgage. Because the court denied the relief requested
in the plaintiff’s operative complaint, we conclude that
there was a final judgment.
B
Having determined that we have jurisdiction over this
appeal, we now address the merits of the plaintiff’s
claims. The plaintiff claims that the trial court improp-
erly denied the foreclosure of its mortgage in order to
allow the defendants to assert the homestead exemp-
tion against the judgment liens that were not part of
the mortgage foreclosure action.5 In response, the
defendants argue that the mortgage is void on public
policy grounds because it is a de facto waiver of the
homestead exemption. We agree with the plaintiff.
The following facts and procedural history are rele-
vant to our resolution of this claim. On July 15, 2015,
the court issued a memorandum of decision and noted
that ‘‘this case has a unique procedural history, in that
the plaintiff has amended its complaint to take the pre-
sent dispute out of the ordinary realm of the homestead
exemption. The plaintiff instituted this action suing on
the unpaid judgment and its attached liens. Only after
the defendants filed notice that they intended to claim
the homestead exemption did the plaintiff amend its
complaint to sue on the forbearance agreement instead.
The calculated steps taken by the plaintiff demonstrate
that the progression of this action has been to get
around the homestead exemption. Had the plaintiff con-
tinued to sue on the judgment liens, there would be
no question that the homestead exemption applied. It
would be an absurd result if the court were to validate
the waiver under these set of facts since it appears the
purpose of amending the complaint was to evade the
goal the legislature sought to achieve when passing the
homestead exemption. Given the potential annihilation
of [General Statutes] § 52-352b (t) and the plaintiff’s
attempts to avoid the homestead exemption that our
legislature deemed necessary, this court finds the
waiver of the homestead exemption, incorporated by
reference into the forbearance agreement is void, and
against public policy. . . . For all the aforementioned
reasons, the court finds that the entire forbearance
agreement is void. The defendants have a right as a
matter of law to file a claim for a [h]omestead exemp-
tion, and, accordingly, judgment is entered on the judg-
ment lien.’’
In response to our request for articulation, the trial
court stated that it ‘‘determined that the entire forbear-
ance agreement including the mortgage created by the
forbearance agreement was void as against public pol-
icy, because it resulted in a waiver of the homestead
[exemption]. The court understands that a mortgage is
a consensual lien and that the homestead [exemption]
does not apply to consensual liens. However, the court
determined that as per the facts of this case, the mort-
gage created pursuant to the forbearance agreement
was invalid, and, as a result, judgment was entered as
to the judgment liens.’’ The court further articulated
that ‘‘[i]t was not until [the] defendants raised their
claim to the homestead exemption pursuant to . . .
§ 52-352b (t), that [the] plaintiff sought to amend the
complaint. The reason for this, ostensibly, is that while
the homestead exemption of $75,000 per owner applies
to the value of the property after consensual liens are
taken into account (such as mortgages), it is paid to
[the] defendants before payment is made to holders of
judgment liens. Therefore, [the] plaintiff could avoid
having the homestead exemption applied to [the] defen-
dants’ interest in [their home], and thus recover more
from a foreclosure, if it were to foreclose the purported
mortgage, rather than the [j]udgment [l]iens. . . .
‘‘In other words, if [the] plaintiff were to foreclose
on the judgment liens, as it had intended to do for
several years after it obtained the mortgage, [the] defen-
dants would be entitled to the homestead exemption
after any consensual or statutory liens were paid, but
before [the] plaintiff received any part of the foreclosure
judgment. However, if the mortgage is still valid, [the]
plaintiff is entitled to be paid on the foreclosure judg-
ment (in an action on the mortgage), without [the]
defendants receiving the amount of the homestead
exemption before [the] plaintiff is paid.’’ (Internal quo-
tation marks omitted.) ‘‘To that end, the court deter-
mined that the mortgage is invalid and that judgment
is entered in favor of the plaintiff as to the judgment
liens, but, not the mortgage.’’
We begin our analysis by setting forth our well estab-
lished standard of review and the relevant legal princi-
ples that govern the issue before us. This court reviews
questions of statutory interpretation under the plenary
standard of review. Spears v. Elder, 156 Conn. App.
778, 785, 115 A.3d 482 (2015).
Pursuant to General Statutes § 52-350f, which gov-
erns the enforcement of money judgments, a judgment
creditor may enforce a money judgment ‘‘against any
property of the judgment debtor unless the property
is exempt from application to the satisfaction of the
judgment under section . . . 52-352b . . . .’’6 ‘‘Section
52-352b identifies assets that are exempt from postjudg-
ment procedures. Subsection (t) exempts ‘[t]he home-
stead of the exemptioner to the value of seventy-five
thousand dollars, or, in the case of a money judgment
arising out of services provided at a hospital, to the
value of one hundred twenty-five thousand dollars, pro-
vided value shall be determined as the fair market value
of the real property less the amount of any statutory
or consensual lien which encumbers it . . . .’ ’’ JP Mor-
gan Chase Bank, N.A. v. Zubretsky, 130 Conn. App.
115, 116 n.1, 22 A.3d 668 (2011), quoting General Stat-
utes § 52-352b (t). A ‘‘[h]omestead means owner-occu-
pied real property . . . used as a primary residence.’’
(Internal quotation marks omitted.) General Statutes
§ 52-352a (e); see also Tuxis-Ohr’s Fuel, Inc. v. Trio
Marketers, Inc., Superior Court, judicial district of New
Haven, Docket No. CV-04-4002067-S (October 26, 2005)
(40 Conn. L. Rptr. 203, 204). ‘‘Read together, §§ 52-350f
and 52-352b (t) set forth a public policy of protecting
one’s homestead up to a value of $75,000.’’ Tuxis-Ohr’s
Fuel, Inc. v. Trio Marketers, Inc., supra, 205.
Here, the plaintiff contends that it is not relying on
any waiver of the homestead exemption, whether in
the forbearance agreement or in the mortgage.7 Rather,
the plaintiff argues that under § 52-352b, the homestead
exemption does not apply to the mortgage as it is a
consensual lien. We agree with the plaintiff.
Although our appellate courts have yet to address the
specific question of whether mortgages are consensual
liens, our superior court has. See Garcia v. Amaranto,
Superior Court, judicial district of Fairfield, Docket No.
CV-98-0355695-S (January 7, 2003) (33 Conn. L. Rptr.
653, 656 n.7) (‘‘[T]he value of the residence for purposes
of the homestead exemption was $82,000, which is
$142,000 minus the $60,000 mortgage taken out on the
property by the defendant. The value of the residence
shall be determined as the fair market value of the real
property less the amount of any statutory or consensual
lien which encumbers it . . . [under] General Statutes
§ 52-352b (t).’’ [Emphasis added; internal quotation
marks omitted.]). These statutory or consensual liens,
such as a tax lien or a mortgage, are used to determine
the fair market value of the homestead under § 52-352b
(t). L. Suzio Asphalt Co. v. Ferreira Construction
Corp., Superior Court, judicial district of New Haven,
Docket No. 351912 (October 19, 1993) (10 Conn. L.
Rptr. 264, 265) (According to legislative history, ‘‘[t]hese
statutory or consensual liens, such as a tax lien or a
mortgage, are used to determine the fair market value
of the homestead under [§ 52-352b] (t). . . . Thus,
mortgages or other statutory or consensual liens that
existed prior to the effective date of the act, October
1, 1993, are to be factored into a determination of the
value of the homestead under [§ 52-352b] (t).’’ [Citation
omitted.]). We find these cases persuasive for the propo-
sition that mortgages are ‘‘consensual liens’’ under § 52-
352b (t). In the present case, the defendants provided
a mortgage on their property to secure their obligations
under the forbearance agreement in exchange for the
plaintiff’s agreement to forbear from collection activi-
ties as long as there was compliance with the modified
payment schedule. This mortgage encumbering the
defendants’ property is a consensual lien under § 52-
352b (t), and therefore the mortgage is exempt from
the homestead exemption set forth in that statute.
The defendants, however, claim that the mortgage is
void on public policy grounds because it is a de facto
waiver of the homestead exemption. In particular, the
defendants rely on Tuxis-Ohr’s Fuel, Inc. v. Trio Mar-
keters, Inc., supra, 40 Conn. L. Rptr. 203, to support
their assertion that the mortgage is void because it is
the functional equivalent of a waiver of the homestead
exemption and against public policy. In Tuxis-Ohr’s
Fuel, Inc., as summarized by the trial court in this case,
‘‘a dispute arose from a breach of a credit sales arrange-
ment between the plaintiff and one of the defendants,
Trio Marketers, Inc. . . . The other defendant, Douglas
Wentz, had personally guaranteed Trio’s debt. . . .
Wentz alleged through a special defense that the guar-
anty given was voidable, either in whole or in part,
because it included a waiver of the homestead exemp-
tion, which he argued was against public policy. . . .
In ruling that the homestead exemption waiver within
the guaranty was void, as it was against public policy,
the court reasoned that if it were to uphold the validity
of a waiver of the homestead exemption, the result
would be an annihilation of the statute since it would
encourage the insertion of a waiver in every similar
instrument as a matter of routine.’’ Id. (Citations omit-
ted; internal quotation marks omitted.)
Although Tuxis-Ohr’s Fuel, Inc. does provide that
waivers of the homestead exemption are void as against
public policy; Id., 205; we are not persuaded that such
reasoning applies here. We emphasize that the plaintiff
is not relying on the waiver of the homestead exemption
in the mortgage.8 Rather, the plaintiff argues that § 52-
352b (t) expressly provides that the homestead exemp-
tion is not applicable to consensual liens, which
includes the mortgage in this case. We agree. Because
the mortgage is a consensual lien, it is exempt from
the homestead exemption. The court, therefore, erred
in relying on the homestead exemption waiver to deter-
mine that the mortgage was void as against public pol-
icy, and we reverse its judgment.
II
THE DEFENDANTS’ CROSS APPEAL
A
Before addressing the merits of the defendants’ cross
appeal, we first must consider whether the court’s judg-
ment foreclosing on the judgment liens constitutes an
appealable final judgment. A judgment of foreclosure
on judgment liens is not, ordinarily, an appealable final
judgment until ‘‘the court has determined the method
of foreclosure and the amount of debt.’’ J & E Invest-
ment Co., LLC v. Athan, supra, 131 Conn. App. 483,
484–85 (determination of parties’ mortgages was inter-
locutory order not immediately appealable); see also
Essex Savings Bank v. Frimberger, supra, 26 Conn.
App. 80–81; General Statutes § 52-380a (c) (‘‘[a] judg-
ment lien on real property may be foreclosed or
redeemed in the same manner as mortgages on the
same property’’). ‘‘Our Supreme Court has held, how-
ever, that, in some circumstances, the factual and legal
issues raised by a legal argument, the appealability of
which is doubtful, may be so inextricably intertwined
with another argument, the appealability of which is
established that we should assume jurisdiction over
both.’’ (Emphasis added; internal quotation marks omit-
ted.) Clukey v. Sweeney, 112 Conn. App. 534, 542, 963
A.2d 711 (2009), citing Collins v. Anthem Health Plans,
Inc., 266 Conn. 12, 29, 836 A.2d 1124 (2003).
For example, in Santorso v. Bristol Hospital, 308
Conn. 338, 354 n.9, 63 A.3d 940 (2013), our Supreme
Court applied the inextricably intertwined standard to
permit review of one of the claims raised on appeal,
namely, the denial of a statute of limitations defense.
Specifically, the court explained that ‘‘[a]lthough the
denial of a statute of limitations defense is not itself an
appealable final judgment, we nevertheless may review
such a claim when it is inextricably intertwined with
the trial court’s denial of a res judicata defense. See
Clukey v. Sweeney, [supra, 112 Conn. App. 542] (‘in
some circumstances, the factual and legal issues raised
by a legal argument, the appealability of which is doubt-
ful, may be so ‘‘inextricably intertwined’’ with another
argument, the appealability of which is established that
we should assume jurisdiction over both’); cf. Collins
v. Anthem Health Plans, Inc., [supra, 266 Conn. 29–30]
(permitting interlocutory appeal for certain claims
when ‘ ‘‘inextricably intertwined’’ ’ with other claims
that were subject to interlocutory appeal pursuant to
statute).’’ (Emphasis in original.) Santorso v. Bristol
Hospital, supra, 354 n.9.
Applying Santorso to this case, we determine that
the claim the defendants raise in their cross appeal is
inextricably intertwined with the claim raised in the
plaintiff’s appeal. In particular, under the unusual cir-
cumstances of this case, both parties contend that the
court erred in rendering a judgment of foreclosure on
the judgment liens, since the operative complaint did
not seek that relief. It is clear that this cross appeal, like
the plaintiff’s appeal, rests heavily on Judge Gilardi’s
determination, both in the court’s memorandum of deci-
sion and articulation, that ‘‘[o]nce the court voided the
forbearance agreement and underlying mortgage, the
remaining matter to be resolved involved judgment on
the original judgment liens.’’ Because this cross appeal
is related so closely to the issues underlying the plain-
tiff’s appeal, we conclude that it is appropriate for us
to assume jurisdiction over the cross appeal.
B
Having assumed jurisdiction, we consider whether
the trial court improperly rendered a judgment of fore-
closure on the judgment liens in favor of the plaintiff.
Specifically, the defendants argue that the court erred
in rendering a judgment of foreclosure on the judgment
liens because the plaintiff amended its complaint to
seek to foreclose solely the mortgage. The defendants,
therefore, contend that it was an error for the court to
render a judgment of foreclosure on the judgment liens
as this claim was no longer in the plaintiff’s operative
complaint. We agree with the defendants.
We begin by setting forth our well established stan-
dard of review and the legal principles that guide our
resolution of the defendants’ claim. ‘‘The defendants’
claim requires us to interpret the allegations of the
plaintiff’s complaint to determine what it fairly alleges
and to compare those allegations with the court’s judg-
ment, as informed by the trial record. The interpretation
of pleadings presents a question of law over which our
review is plenary.’’ Landry v. Spitz, 102 Conn. App. 34,
41, 925 A.2d 334 (2007); see also Martino v. Scalzo, 113
Conn. App. 240, 245, 966 A.2d 339 (‘‘[t]he construction of
a pleading is a question of law, over which we exercise
plenary review’’ [internal quotation marks omitted]),
cert. denied, 293 Conn. 904, 976 A.2d 705 (2009).
‘‘The purpose of the complaint is to limit the issues
to be decided at the trial of a case and is calculated to
prevent surprise. . . . A complaint should fairly put
the defendant on notice of the claims against him. . . .
Thus, a plaintiff during trial cannot vary the factual
aspect of his case in such a way that it alters the basic
nature of the cause of action alleged in his complaint.
. . . In other words, [a] plaintiff may not allege one
cause of action and recover upon another.’’ (Citations
omitted; internal quotation marks omitted.) Landry v.
Spitz, supra, 102 Conn. App. 41.
Practice Book § 10-60 (3) permits a party to file a
request for leave to file an amended complaint and
permits the opposing party to file an objection to any
part of such request. In the present case, the court
overruled the defendants’ objection to the plaintiff’s
request for leave to amend its complaint. Our Supreme
Court previously has concluded that an amended com-
plaint operates as a withdrawal of the original com-
plaint. Wesley v. DeFonce Contracting Corp., 153 Conn.
400, 404, 216 A.2d 811 (1966). Specifically, in Wesley,
it explained: ‘‘The amended complaint, since it is com-
plete in itself and entirely supersedes the original com-
plaint, should more accurately be termed a substitute
complaint. . . . As such, its voluntary filing operated
as a withdrawal of the original complaint, which there-
upon became merely a part of the history of the case.’’
(Citation omitted.) Id.; see also Wilson v. Hryniewicz,
38 Conn. App. 715, 719, 663 A.2d 1073 (‘‘When an
amended pleading is filed, it operates as a waiver of
the original pleading. The original pleading drops out
of the case and although it remains in the file, it cannot
serve as the basis for any future judgment, and previous
rulings on the original pleading cannot be made the
subject of appeal.’’), cert. denied, 235 Conn. 918, 665
A.2d 610 (1995).
In the present case, the parties agree that the court
rendered a judgment of foreclosure on a claim that
was no longer in the plaintiff’s operative complaint.
Specifically, after the defendants defaulted on their pay-
ments in the forbearance agreement, the plaintiff com-
menced an action to foreclose the judgment liens.
Shortly thereafter, the plaintiff requested permission to
amend its complaint to seek foreclosure of the mortgage
instead of the judgment liens, which the court granted
on May 15, 2014. The plaintiff then filed an operative
complaint seeking a strict foreclosure on the mortgage
and abandoning its request for foreclosure of the judg-
ment liens. See Wesley v. DeFonce Contracting Corp.,
supra, 153 Conn. 404 (amended complaint operates as
withdrawal of original complaint). Accordingly, neither
party pleaded, briefed or argued that the trial court
should render judgment of foreclosure on the judgment
liens. The court, however, rendered a judgment of fore-
closure on the judgment liens in favor of the plaintiff.
Because the court based its decision on a claim that
was not advanced by either party, we conclude that it
erred in rendering a judgment of foreclosure on the
judgment liens.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
The Housatonic Lumber Company was also named as a defendant by
virtue of its encumbrances on the Sanzos’ property both prior and subsequent
to the encumbrance sought to be foreclosed, but it was defaulted for failure
to plead. All references to the defendants therefore refer to John Sanzo and
Maria Sanzo only.
2
A document entitled ‘‘Open-End Mortgage’’ (mortgage), dated April 26,
2009, was executed by the defendants and secures their obligation due under
the forbearance agreement, which includes the judgment liens, fees, costs
and additional interest.
3
Connecticut’s homestead exemption is codified at General Statutes § 52-
352b, which provides in relevant part: ‘‘The following property of any natural
person shall be exempt . . . (t) The homestead of the exemptioner to the
value of seventy-five thousand dollars . . . provided value shall be deter-
mined as the fair market value of the real property less the amount of any
statutory or consensual lien which encumbers it . . . .’’
4
Specifically, the plaintiff contends that although the court failed to deter-
mine the amount of debt and the method of foreclosing on the judgment
liens, it did determine that the forbearance agreement was void and thus
refused to render judgment of foreclosure on the mortgage.
5
In part II B of this opinion, we address the court’s error in foreclosing
on the judgment liens. Such relief was not sought in the operative complaint.
6
General Statutes § 52-350f provides: ‘‘A money judgment may be enforced
against any property of the judgment debtor unless the property is exempt
from application to the satisfaction of the judgment under section 52-352a,
52-352b, 52-352d or 52-361a or any other provision of the general statutes
or federal law. The money judgment may be enforced, by execution or by
foreclosure of a real property lien, to the amount of the money judgment
with (1) all statutory costs and fees as provided by the general statutes, (2)
interest as provided by chapter 673 on the money judgment and on the costs
incurred in obtaining the judgment, and (3) any attorney’s fees allowed
pursuant to section 52-400c.’’
7
We note that the mortgage did in fact include a waiver of the homestead
exemption. Specifically, paragraph sixteen of the mortgage states: ‘‘The
[m]ortgagor waives all rights of homestead exemption in, and statutory
redemption of, the [p]roperty and all right of appraisement of the [p]roperty
and relinquishes all rights of courtesy and dower in the [p]roperty.’’ We
need not further discuss this issue, as the issues raised by the plaintiff on
appeal do not involve its reliance on the homestead exemption waiver in
the forbearance agreement.
8
See footnote 7 of this opinion.