Bank of Stamford v. Schlesinger ( 2015 )

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BANK OF STAMFORD ET AL. v. RICHARD
SCHLESINGER ET AL.
(AC 36661)
Lavine, Prescott and Mullins, Js.
Argued March 9—officially released September 22, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Kevin Tierney, judge trial
referee [motion to dismiss]; Hon. A. William Mottolese,
judge trial referee [motion for order]).
Brenden P. Leydon, for the appellant (named
defendant).
Anthony J. LaBella, with whom, on the brief, was
Deborah M. Garskof, for the appellee (Cadles of Grassy
Meadows II, LLC).
Opinion
LAVINE, J. The issues in this appeal center on the
propriety of the trial court’s having corrected a clerical
error in the recording of a 1995 stipulated judgment.
‘‘It is axiomatic that courts have the power and the duty
to correct judgments [that] contain clerical errors
. . . .’’ American Trucking Assns. v. Frisco Transpor-
tation Co., 358 U.S. 133, 145, 79 S. Ct. 170, 3 L. Ed. 2d
172 (1958).
The defendant Richard Schlesinger appeals from the
judgment of the trial court rendered in favor of the
movant, Cadles of Grassy Meadows II, LLC (Cadles).1
On appeal, Schlesinger claims that the trial court
improperly (1) ‘‘exercise[d] jurisdiction over the non-
party’s motion when the [d]efendant was clearly never
properly served,’’ (2) ‘‘effectively allowed a nonparty
to file a motion in a case,’’ (3) ‘‘failed to give preclusive
effect to a valid New York decision establishing the
invalidity of the improper nunc pro tunc motion,’’ and
(4) ‘‘acted sua sponte in an attempt to moot the clear
jurisdictional failures of Cadles’ prior actions.’’2 We
affirm the judgment of the trial court.
This matter has a lengthy procedural history, which
could be described as a comedy of errors set in motion
by a relatively innocuous clerical error two decades
ago. To place this opinion in context, we are required
to summarize the events that underlie this appeal. In
1988, the defendant William Weinstein borrowed money
from the plaintiff, Bank of Stamford (bank); Schlesinger
guaranteed the note. The defendants defaulted on the
note, and the bank commenced an action against them.
Subsequently, the bank was acquired by another, which
failed and was taken over by the Federal Deposit Insur-
ance Corporation (FDIC). The FDIC was substituted as
the plaintiff. In 1995, the parties placed a stipulated
judgment on the record before the court, R. Tobin, J.,
but the assistant clerk failed to include the amount of
the judgment when recording the judgment. The stipu-
lated judgment was assigned several times and ulti-
mately came into the possession of Cadles, which
attempted to execute the judgment in foreign jurisdic-
tions. Due to the clerical error in the judgment, Cadles’
efforts to enforce the stipulated judgment were unsuc-
cessful, as foreign courts mistakenly concluded that it
was a default judgment. Cadles thereafter filed a num-
ber of documents and a motion for order nunc pro tunc
(motion for order) in the trial court seeking to have the
judgment corrected. The motion for order was granted
by the court, Hon. A. William Mottolese, judge trial
referee. Approximately two years later, Schlesinger
filed a motion to dismiss seeking among other things
to have the order correcting the judgment vacated. The
motion to dismiss was assigned to the court, Hon. Kevin
Tierney, judge trial referee, for adjudication.3
Following a hearing, Judge Tierney issued a lengthy
and detailed memorandum of decision on February 28,
2014. The court found that in March, 1990, the bank
commenced a collection action against Weinstein, who
had defaulted on a $250,000 promissory note, which he
had executed on November 1, 1988, and Schlesinger,
who had guaranteed the note. Thereafter the bank
became Fairfield County Trust Company, but Fairfield
County Trust Company failed and was taken over by the
FDIC. The FDIC was substituted as the party plaintiff on
September 13, 1993. The action was called for trial on
October 18, 1995. At that time, the FDIC was repre-
sented by The Pellegrino Law Firm, P.C., and the defen-
dants were represented by the law firm of Epstein,
Fogarty, Cohen and Selby.
Counsel for the parties appeared before Judge Tobin
and indicated to the court that the parties had reached
an agreement to be placed on the record. Attorney Ber-
nard Pellegrino stated: ‘‘What we’d like to do is read
into the record and then file a written stipulation so
we have something in writing. But in effect, the
agreement is that judgment shall enter in favor of the
plaintiff against both defendants in the amount of
$292,014.22 . . . . This is a collection on a note.’’ The
court inquired about principal and interest, and when
it was to be paid. Pellegrino stated that a written stipula-
tion would be filed, ‘‘so that would be on . . . the
record.’’ Counsel for the defendants, Carolyn Alexander
Collins, stated: ‘‘That’s the agreement. Yes, Your
Honor.’’
Judge Tierney found that Judge Tobin had accepted
the stipulated judgment, and that an assistant clerk
completed a preprinted form labeled ‘‘JUDGMENT,’’
which stated that ‘‘Judgment may enter in accordance
with the . . . stipulation ENTERED ON THE RECORD
THIS DATE, 10/18/95.’’ The completed judgment form
was attached to a half-page form entitled ‘‘CASE DISPO-
SITION RECORD.’’ Judge Tierney found that the judg-
ment form and the disposition record form identified
the parties as ‘‘Bank of Stamford v. Schlesinger, Rich-
ard.’’ Neither form indicated that the FDIC and
Weinstein were parties, stated the amount of the judg-
ment, or indicated that the case was a collection action.
The assistant clerk entered the two forms into what is
now Edison, the court’s e-filing program, as docket
entry number 128.55. The following day, the clerk’s
office issued a computer-generated notice that stated:
‘‘128.55 JUDGEMENT BY STIPULATION BEFORE A
TRIAL, COURT OR JURY, IS COMMENCED. TOBIN, J.
10/18/95.’’ The court found that this type of notice is
customarily sent to all counsel of record.
The court also found that no further entries had been
recorded on the docket of the present action until July
14, 2008—almost thirteen years later—and that a stipu-
lation of judgment had not been filed by the parties as
they had represented to Judge Tobin. Judge Tierney,
however, found in the court file a two page document
entitled ‘‘Stipulation of Judgment’’ (stipulation), dated
October 18, 1995.4 The stipulation had not been coded
as a separate pleading in the court’s paper file or in the
Edison computer file. The stipulation was signed by
Pellegrino, but not by Alexander Collins.
On July 14, 2008, Cadles filed four documents, each
representing an assignment of the stipulated judgment
and collectively documenting the stipulated judgment’s
chain of ownership.5 On February 15, 2011, the law firm
of Ury & Moskow, LLC, filed an appearance on behalf
of Cadles,6 which the clerk’s office coded for an entity
other than a party of record. At that time, Cadles’ coun-
sel also filed the motion for order with a copy of the
stipulation and a copy of the transcript of proceedings
before Judge Tobin. The last sentence of the motion
for order states that Cadles ‘‘respectfully moves that the
court order that Judgment enter against all Defendants,
nunc pro tunc, in conformance with the Stipulation
and Transcripts, submitted herewith, as of October 18,
1995.’’ (Emphasis omitted.) The motion for order certi-
fied service of the motion to Alexander Collins at
Epstein, Fogarty, Cohen & Selby.
Judge Tierney found that on March 7, 2011, Judge
Mottolese issued an order stating: ‘‘As the court is
authorized to correct the terms of a judgment at any
time to reflect the true facts, the judgment by stipulation
heretofore entered by the court on October 18, 1995 is
hereby corrected to state the amount of judgment to
be $292,014.22.’’
On July 3, 2013, Schlesinger filed a motion to dismiss
asking the court (1) to dismiss Cadles as a nonparty,
(2) to vacate all actions taken by Cadles, including the
stipulations it filed and the motion for order, and (3)
to vacate Judge Mottolese’s order regarding the motion
for order. Schlessinger claimed that the motion to dis-
miss should be granted due to improper service of pro-
cess. Counsel for Cadles and Schlesinger appeared
before Judge Tierney on November 26, 2013.
As previously stated, Judge Tierney denied the
motion to dismiss in a memorandum of decision issued
on February 28, 2014. The court found that a stipulated
judgment against the defendants had entered on Octo-
ber 18, 1995, in the amount of $292,014.22, pursuant to
the parties’ agreement on the record. The court con-
cluded that the judgment recorded by the assistant clerk
contained a clerical error, and that the court had the
inherent authority to correct clerical errors and the
power to enforce its judgments. The court also found
that neither the twenty year statute of limitations to
issue an execution on a judgment, nor the twenty-five
year statute of limitations to bring an action on a judg-
ment had run. See General Statutes § 52-598 (a). This
appeal followed.
We begin by identifying the standard of review appli-
cable to Schlesinger’s claims on appeal. ‘‘A determina-
tion regarding a trial court’s subject matter jurisdiction
is a question of law. . . . When a trial court draws
conclusions of law, appellate review is plenary, and the
reviewing court must decide whether the trial court’s
conclusions are legally and logically correct.’’ (Internal
quotation marks omitted.) Youngman v. Schiavone, 157
Conn. App. 55, 63, 115 A.3d 516 (2015).
I
On appeal, Schlesinger first claims that the ‘‘trial
court erred in exercising jurisdiction over the nonpar-
ty’s motion when the [d]efendant was clearly never
properly served.’’ More specifically, Schlesinger claims
that the court lacked jurisdiction because Cadles did
not serve him with the motion for order pursuant to
General Statutes § 52-350e.7 We disagree.
The following facts are relevant to this claim. In Feb-
ruary, 2011, Cadles filed a motion for order asking the
court to correct the clerical error in the recording of
the stipulated judgment. Cadles sent a copy of the
motion for order to Schlesinger’s counsel of record as
of October 18, 1995, but did not have a proper officer
serve the motion for order on Schlesinger. The motion
for order appeared on the nonarguable short calendar,
and on February 16, 2011, Judge Mottolese issued the
following order: ‘‘As the court is authorized to correct
the terms of a judgment at any time to reflect the true
facts, the judgment by stipulation heretofore entered
by the court on October 18, 1995 is hereby corrected
to state the amount of judgment to be $292,014.22.’’
In July, 2013, Schlesinger filed a motion to dismiss
asking, in part, that the court vacate any action taken
on the motion for order because he had not been served
pursuant to § 52-350e. Thereafter Cadles and Schle-
singer appeared before Judge Tierney on November 26,
2013. In his memorandum of decision, Judge Tierney
found that the present case concerns a clerical error,
not a substantive error, and that Judge Mottolese had
the authority to correct the judgment sua sponte, upon
motion by either party properly authorized by statutes,
or by the clerk’s notification. In other words, the manner
in which a clerical error is brought to the attention of the
court is of no consequence. Moreover, Judge Tierney
concluded that Judge Mottolese issued his order pursu-
ant to the court’s inherent authority to correct a clerical
error in a judgment.
Judge Tierney nonetheless acknowledged that Schle-
singer did not have notice of the clerical error before
Judge Mottolese issued his order of March 7, 2011, and
was therefore unable to object. See General Statutes
§ 52-350c. Judge Tierney found, however, that Schle-
singer had notice of the error at the time that Cadles
and Schlesinger appeared before him. The court again
noted its inherent power to correct the clerical error
in the judgment on the basis of three facts. The court
found that the judgment (1) entered in favor of the
FDIC, (2) against the defendants, (3) in the amount of
$292,014.22 on October 18, 1995.8 Judge Tierney con-
cluded that because he had made the requisite findings
to correct the judgment, Schlesinger’s challenge to
Judge Mottolese’s March 7, 2011, order was moot.
Although Schlesinger has cast his claims in terms of
the court’s jurisdiction, what he really is challenging is
the court’s authority to act, or the manner in which it
acted. There is a ‘‘distinction between a trial court’s
jurisdiction and its authority to act under a particular
statute.’’ (Internal quotation marks omitted.) Amodio
v. Amodio, 247 Conn. 724, 727, 724 A.2d 1084 (1999).
‘‘Subject matter jurisdiction involves the authority of a
court to adjudicate the type of controversy presented
by the action before it. . . . A court does not truly
lack subject matter jurisdiction if it has competence to
entertain the action before it. . . . Once it is deter-
mined that a tribunal has authority or competence to
decide the class of cases to which the action belongs,
the issue of subject matter jurisdiction is resolved in
favor of entertaining the action.’’ (Citations omitted;
internal quotation marks omitted.) Id., 727–28.
It is well established that, in determining whether a
court has subject matter jurisdiction, ‘‘every presump-
tion favoring jurisdiction should be indulged.’’ (Internal
quotation marks omitted.) Connecticut Light & Power
Co. v. Costle, 179 Conn. 415, 421 n.3, 426 A.2d 1324
(1980).
The essence of Schlesinger’s claim is that he was
entitled to notice before Judge Mottolese ordered the
clerical record corrected to reflect the amount of the
stipulated judgment. Judge Tierney found that Judge
Mottolese had the inherent authority to correct the judg-
ment without service on Schlessinger. We agree with
Judge Tierney.
It is within the equitable powers of the trial court ‘‘to
fashion whatever orders [are] required to protect the
integrity of [its original] judgment.’’ (Internal quotation
marks omitted.) Commissioner v. Youth Challenge of
Greater Hartford, Inc., 219 Conn. 657, 670, 594 A.2d
958 (1991); see Blake v. Blake, 211 Conn. 485, 494, 560
A.2d 396 (1989) (at common law clerical errors in judg-
ments may be corrected any time). ‘‘Courts have in
general the power to fashion a remedy appropriate to
the vindication of a prior . . . judgment. . . . Having
found noncompliance, the court, in the exercise of its
equitable powers, necessarily ha[s] the authority to
fashion whatever orders [are] required to protect the
integrity of [its original] judgment.’’ (Internal quotation
marks omitted.) Gong v. Huang, 129 Conn. App. 141,
154, 21 A.3d 474, cert. denied, 302 Conn. 907, 23 A.3d
1247 (2011).
‘‘A trial court possesses the power to modify substan-
tively its own judgment within four months succeeding
the date on which it was rendered or passed. . . . A
court may correct a clerical error at any time, even
after the expiration of the four month period. . . . It is
axiomatic that a judgment should admit of a consistent
construction as a whole. . . . A clerical error does not
challenge the court’s ability to reach the conclusion
that it did reach, but involves the failure to preserve or
correctly represent in the record the actual decision of
the court.’’ (Citations omitted; internal quotation marks
omitted.) Jordan v. Jordan, 125 Conn. App. 207, 211,
6 A.3d 1206 (2010), cert. denied, 300 Conn. 919, 14 A.3d
333 (2011). ‘‘In other words, it is clerical error if the
judgment as recorded fails to agree with the judgment
in fact rendered . . . . Thus, a motion to correct prop-
erly is granted when the moving party demonstrates
that the recorded judgment is inconsistent with the
actual judgment. . . . A finding of an inconsistency
between the recorded judgment and the actual judg-
ment necessarily requires that the actual judgment be
unambiguous and clearly ascertainable.’’ (Citations
omitted; internal quotation marks omitted.) Connecti-
cut National Bank v. Gager, 263 Conn. 321, 326, 820
A.2d 1004 (2003).
In the present matter, the trial court record failed to
include the amount of the judgment and to identify the
parties. For the foregoing reasons, we conclude that,
as a matter of equity, the trial court had authority to
correct the clerical error in the recorded judgment even
if the motion for order was not served on Schlesinger.
Therefore, Schlesinger’s first claim fails.
II
Schlesinger’s second claim is that the court improp-
erly permitted a nonparty to file a motion in the underly-
ing action. He contends as well that Cadles had no
right to file the assignments, stipulation, transcript, and
motion for order as it was not a party to the action.
We disagree.
Judge Tierney found that Judge Mottolese acted pur-
suant to the court’s inherent authority to correct the
clerical error in the court record, and concluded: ‘‘The
language used by Judge Mottolese in his March 7, 2011
order indicates that his decision was based on the
court’s inherent authority to correct a clerical error in
a judgment entered by a judge now deceased.’’ Schle-
singer’s second claim, therefore, fails.9
III
Schlesinger’s third claim is that the court failed to
give preclusive effect to a New York judgment. We need
not decide the claim as it is moot.
Judge Tierney made the following findings of fact.
Cadles filed actions against Schlesinger in Florida and
New York in an effort to enforce the stipulated judg-
ment, nunc pro tunc. The foreign courts rejected Cadles’
efforts on the basis of its failure to comply with the
procedural rules of the respective foreign jurisdiction.
Judge Tierney concluded that neither decision was
binding upon the court.
On appeal, Schlesinger claims that the parties liti-
gated the ‘‘putative 1995 judgment’’ in New York. See
Cadles of Grassy Meadows II, LLC v. Schlesinger, N.Y.
Sup. Ct., Nassau County, Index No. 10097-2011 (Novem-
ber 15, 2013) (McCormack, J.).10 The Supreme Court of
New York determined that the judgment was never
entered and that Cadles ‘‘defaulted’’ in entering a judg-
ment in a timely manner or ‘‘abandoned’’ the proceeding
for fifteen years. The New York court ruled that Cadles
had attempted to short circuit the process as if a valid
judgment had entered in 1995. Schlesinger claims that
this New York judgment is binding on Cadles under the
doctrine of collateral estoppel and that Judge Tierney
was bound to afford it full faith and credit.
In its brief on appeal, Cadles has represented that,
by order entered on June 20, 2014, the New York court
vacated its November 15, 2013 order and found the
subject judgment to be enforceable by Cadles in New
York.11 See Cadles of Grassy Meadows II, LLC v. Schle-
singer, N.Y. Sup. Ct., Nassau County, Index No. 10097-
2011 (June 20, 2014) (McCormack, J.). Furthermore, by
order dated October 9, 2014, the New York court denied
Schlesinger’s motions to vacate, expunge and reargue
the June 20, 2014 judgment. See Cadles of Grassy Mead-
ows II, LLC v. Schlesinger, N.Y. Sup. Ct., Nassau
County, Index No. 10097-2011 (October 9, 2014)
(McCormack, J.). Cadles included stamped copies of
the June 20, 2014 and October 9, 2014 decisions of the
New York Supreme Court in the appendix to its brief.
‘‘[T]he reports of judicial decisions of other states
and countries may be judicially noticed by the courts
of this state as evidence of the common law of such
states or countries and of the judicial construction of
the statutes or other laws thereof.’’ (Internal quotation
marks omitted.) Pagliaro v. Jones, 75 Conn. App. 625,
634, 817 A.2d 756 (2003). ‘‘Matter which it is claimed
the court should judicially notice should be called to
its attention by the party seeking to take advantage of
the matter so that, if there is ground upon which it may
be contradicted or explained, the adverse party will be
afforded an opportunity to do so.’’ (Internal quotation
marks omitted.) Wood v. Wood, 165 Conn. 777, 780–81,
345 A.2d 5 (1974).
Although Schlesinger filed his initial brief on October
3, 2014—more than twenty-five years after he guaran-
teed Weinstein’s loan from the bank— he did not men-
tion the New York court’s June 20, 2014 decision
reversing its November 15, 2013 judgment. He did
address the issue in his reply brief, however, arguing
that Judge Tierney was constrained by the state of the
record at the time he issued his ruling on February
28, 2014. During oral argument before us, Schlesinger’s
counsel represented that the New York decisions are
on appeal, apparently having forgotten the position he
took in his ‘‘notice of filing supplemental authority in
support of motion to dismiss’’ before Judge Tierney,
i.e., ‘‘a pending appeal does not preclude the application
of the . . . doctrine of collateral estoppel.’’ LaBow v.
Rubin, 95 Conn. App. 454, 467, 897 A.2d 136, cert.
denied, 280 Conn. 933, 909 A.2d 960 (2006). Moreover,
the New York court denied Schlesinger’s motion to stay
the New York judgment for failure to post a security
bond.
In the present case, we have taken judicial notice of
the three decisions of the New York court and conclude
that Schlesinger’s claim is moot. ‘‘Mootness is a question
of justiciability that must be determined as a threshold
matter because it implicates [this] court’s subject mat-
ter jurisdiction. . . . Because courts are established to
resolve actual controversies, before a claimed contro-
versy is entitled to a resolution on the merits it must
be justiciable . . . . Justiciability requires (1) that
there be an actual controversy between or among the
parties to the dispute . . . (2) that the interests of the
parties be adverse . . . (3) that the matter in contro-
versy [is] capable of being adjudicated by judicial power
. . . and (4) that the determination of the controversy
will result in practical relief to the complainant. . . .
A case is considered moot if [the] court cannot grant
the appellant any practical relief through its disposition
of the merits . . . . Because mootness implicates this
court’s subject matter jurisdiction, it raises a question of
law over which we exercise plenary review.’’ (Internal
quotation marks omitted.) Wyatt Energy, Inc. v. Motiva
Enterprises, LLC, 308 Conn. 719, 736, 66 A.3d 848
(2013).
On the basis of our review of the New York litigation,
we conclude that Schlesinger’s claim regarding the pre-
clusive effect of that litigation is no longer justiciable
because the resolution of the litigation in Cadles’ favor
has resolved the controversy. We, therefore, dismiss
Schlesinger’s claim as moot.
IV
Schlesinger’s final claim is that the court improperly
acted sua sponte in an attempt to render moot the clear
jurisdictional failures of Cadles’ prior actions. We
disagree.
Judge Tierney found that Judge Mottolese granted
the motion for order on March 7, 2011, and quoted the
language of the order: ‘‘As the court is authorized to
correct the terms of a judgment at any time to reflect
the true facts, the judgment by stipulation heretofore
entered by the court on October 18, 1995 is hereby
corrected to state the amount of judgment to be
$292,014.22.’’ As we previously have stated in this opin-
ion, ‘‘[i]t is axiomatic that courts have the power and
the duty to correct judgments which contain clerical
errors . . . .’’ (Emphasis added; internal quotation
marks omitted.) Lamont v. New Hartford, 4 Conn. App.
303, 306, 493 A.2d 298 (1985), quoting American Truck-
ing Assns. v. Frisco Transportation Co., supra, 358
U.S. 145.
When Judge Mottolese determined that the recorded
judgment did not conform to the stipulated judgment
accepted by Judge Tobin on October 18, 1995, it was
his duty and responsibility to order the clerical error
corrected. In adjudicating Schlesinger’s motion to dis-
miss, Judge Tierney made the necessary factual findings
to determine that the parties had entered a stipulated
judgment on the record and that the stipulation
recorded was consistent with the language used by
the parties in court on October 18, 1995.12 Both Judge
Mottolese and Judge Tierney acted within their author-
ity and power to correct the judgment. Schlesinger’s
claim ascribing an improper motive to the trial court
is entirely without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
William Weinstein also was a defendant at trial, but he has not partici-
pated in this appeal. We refer to the defendants individually by name and
collectively as the defendants.
Cadles was not a party to the underlying action. It is the assignee of the
stipulated judgment rendered in favor of the Federal Deposit Insurance
Company, the successor in interest to the plaintiff, Bank of Stamford. Cadles
filed an appellee’s brief in response to the brief filed by Schlesinger on
appeal, and both parties appeared and argued before us. Thereafter, we sua
sponte ordered Cadles to file a motion to be made party to this appeal. We
subsequently granted the motion without objection.
2
Although Schlesinger filed an appeal from the ‘‘final judgment denying
motion to dismiss,’’ in his statement of the issues on appeal and in his brief,
Schlesinger appears to challenge the judgment granting the motion for order
nunc pro tunc. Schlesinger never appealed from the court’s order that the
underlying stipulated judgment be corrected.
3
Judge Tobin passed away between the time he accepted the stipulated
judgment and Cadles’ filing the motion for order.
4
The stipulation stated in part: ‘‘The parties stipulated on the record that
judgment may enter in favor of the Plaintiff, Federal Deposit Insurance
Corporation as Receiver for Fairfield County Trust Company against the
Defendants, Richard Schlesinger and William Weinstein, jointly and sever-
ally, in the amount of $292,014.22. . . . The date of judgment shall be Octo-
ber 18, 1995.’’
5
According to the documents the stipulated judgment was assigned as
follows: on June 20, 2008, the FDIC assigned its interest in the stipulated
judgment to JDC Finance Company III, L.P.; on July 7, 2008, the JDC Finance
Company III, L.P., assigned its interest in the judgment to Value Recovery
Group, Inc.; on July 9, 2008, Value Recovery Group, Inc., assigned its interest
in the stipulated judgment to The Cadle Company; on July 9, 2008, The
Cadle Company assigned its interest in the stipulated judgment to Cadles.
6
The form stated the appearance was on behalf of ‘‘Plaintiff; Cadles of
Grassy Meadows II, LLC successor in interest to FDIC Receiver for Bank
of Stamford.’’
7
General Statutes § 52-350e (a) provides in relevant part: ‘‘Unless other-
wise provided by . . . service of process containing a postjudgment proce-
dure, or concerning a determination of interest in property . . . may be
made (1) by a proper officer sending a true and attested copy thereof by
certified mail, return receipt requested, to a person at his last-known address
. . . or (3) as provided by rule of court for service on an appearing party
if made on a party who has filed a postjudgment appearance or if made
within one hundred eighty days of rendition of judgment on a party who
has appeared in the action.’’
8
On appeal, Schlesinger does not challenge the three facts found by
Judge Tierney.
9
Schlesinger also has argued that before Cadles could file documents and
motions, it was required to be substituted as a party plaintiff. This argument
fails because judgment entered on October 18, 1995, and no action was
pending at the time it filed the subject documents.
As a general matter, ‘‘substitution is permitted where an action was com-
menced in the name of the wrong person . . . in cases of misjoinder and
nonjoinder . . . and in cases of assignment. . . . In each situation, the
statute or rule envisions substitution while the action is pending. . . . (sub-
stitution allowed [w]hen any action has been commenced in the name of
the wrong person) . . . (substitution permissible [i]f, pending the action,
the plaintiff assigns the cause of action). Where judgment has been rendered,
however, substitution is unavailable unless the judgment is opened.’’ (Cita-
tions omitted; emphasis added; internal quotation marks omitted.) Joblin
v. LaBow, 33 Conn. App. 365, 367, 635 A.2d 874 (1993), cert. denied, 229
Conn. 912, 642 A.2d 1207 (1994).
Moreover, any attempt by Cadles to open the judgment likely would not
have been successful. Pursuant to General Statutes § 52-212a, no motion to
open may be filed except within four months of a judgment’s being rendered,
unless certain exceptions apply. None of the exceptions appear to be present
here and more than a decade had passed between the time judgment was
rendered and when Cadles asked the court to correct a clerical error.
10
The New York court granted the defendants’ motion for order vacating
the nunc pro tunc judgment filed with the Nassau County Clerk’s office on
July 8, 2011. According to the New York court, ‘‘[t]he nunc pro tunc judgment
was based on a default in appearance and entered in violation of [certain
rules and laws of civil procedure].’’ (Emphasis omitted.)
11
The New York court stated that ‘‘it has now been established that the
Connecticut Court’s 1995 judgment was not entered into on default, this
court finds the judgment is entitled to full faith and credit . . . . This court’s
November 15, 2013 decision and order is thereby vacated.’’
12
Although it was not necessary to do so to correct the clerical error,
Judge Tierney stated that trial courts have the authority to enforce stipulated
judgments pursuant to Audubon Parking Associates Ltd. Partnership v.
Barclay & Stubbs, Inc., 225 Conn. 804, 811–12, 626 A.2d 729 (1993) (Audu-
bon). On appeal, Schlesinger argues that no Audubon motion had been filed
and that it was improper for the court to sua sponte enforce the stipulated
judgment pursuant to Audubon. We need not address this argument as
we have concluded that both Judge Mottolese and Judge Tierney properly
exercised the court’s inherent equitable authority to correct the clerical
error in the judgment.