Bomberov. Bombero ( 2015 )

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RONALD M. BOMBERO v. STEPHEN C. BOMBERO
STEPHEN C. BOMBERO v. RONALD M.
BOMBERO ET AL.
(AC 35168)
RONALD M. BOMBERO v. STEPHEN C. BOMBERO
(AC 35822)
DiPentima, C. J., and Keller and Norcott, Js.
Argued February 19—officially released September 29, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Howard T. Owens, Jr., judge trial referee
[summary judgment; motion for attorney’s fees];
Radcliffe, J. [strict foreclosure].)
Hugh D. Hughes, with whom, on the brief, was Steven
M. Reilly, for the appellant (defendant in the first case,
plaintiff in the second case).
Elaine K. Stuhlman, for the appellee (plaintiff in the
first case, defendants in the second case).
Opinion
DiPENTIMA, C. J. At the nucleus of these consoli-
dated and amended appeals is a monetary dispute
between two brothers. In AC 35168, the defendant, Ste-
phen C. Bombero, appeals from the judgment rendered
in favor of the plaintiff, Ronald M. Bombero, as to the
plaintiff’s complaint, seeking the foreclosure of a note
and the reformation of a mortgage release, and granting
the plaintiff’s motion for summary judgment on the
defendant’s counterclaim.1 In AC 35822, the defendant
appeals from the judgment of strict foreclosure ren-
dered in favor of the plaintiff; an amended appeal, desig-
nated AC 35822xA01, was filed challenging the court’s
subsequent decision to award attorney’s fees to the
plaintiff. We conclude that the court improperly ren-
dered judgment in favor of the plaintiff on his complaint
and, therefore, remand that portion of the case for fur-
ther proceedings. We dismiss the appeal from the judg-
ment rendered in favor of the plaintiff with respect to
the counterclaim.
The record reveals the facts and procedural history
that are both confusing and protracted. We set forth
only the relevant details that are necessary to the resolu-
tion of these appeals. On April 11, 2000, the plaintiff
and the defendant executed a promissory note, payable
on demand, in the amount of $79,116.50. As security, the
defendant mortgaged his one-third interest in property
located at 151 Booth Hill Road in Trumbull to the plain-
tiff. The defendant agreed to pay one third of the taxes
on this property. On May 2, 2007, the plaintiff made
a written demand for payment of the note. After the
defendant failed to make the required payment, the
plaintiff commenced a one count foreclosure action
on September 6, 2007, alleging that the defendant was
in default.
On October 30, 2007, the defendant filed an answer
and raised five special defenses: Payment of the note;
the plaintiff’s failure to comply with the covenants of
good faith and fair dealing by commencing a foreclosure
action after receiving full payment of the note; release
and discharge of the mortgage following payment of
the note; the plaintiff’s inequitable conduct in bringing a
foreclosure action after payment of the note and release
and discharge of the mortgage; and the statute of limita-
tion as set forth in General Statutes § 52-576.2 The plain-
tiff denied the defendant’s special defenses on August
25, 2010.
On July 28, 2008, the defendant commenced a civil
action against the plaintiff and certain other parties. See
Bombero v. Bombero, Superior Court, judicial district of
Fairfield, Docket No. CV-08-5017758-S. In that case, the
defendant sought a partition of 151 Booth Hill Road
and a sale of that property. On May 4, 2010, the court
granted the plaintiff’s motion to consolidate his foreclo-
sure action with the defendant’s partition action.
The plaintiff amended his foreclosure complaint, add-
ing a count for reformation on August 31, 2010. In this
count, the plaintiff alleged that on April 11, 2000, the
defendant was indebted to the plaintiff in the amount
of $79,116.50 and that this debt was secured by a mort-
gage of the defendant’s one-third interest in 151 Booth
Hill Road.3 The plaintiff further claimed that in June,
2000, the defendant executed a second note to the plain-
tiff in the amount of $85,000. This second note was due
and payable upon the sale of the defendant’s residence
at 101 Golden Hill Street in Trumbull. The defendant
gave the plaintiff a mortgage on the 101 Golden Hill
Street property to secure the $85,000 note, which was
recorded on the Trumbull land records. The defendant
sold the 101 Golden Hill Street property on August 22,
2000, and paid the plaintiff $81.476.86. Approximately
one week later, the plaintiff went to the office of the
defendant’s attorney, Serge Mihaly, to sign a release of
the mortgage on the 101 Golden Hill Street property.
The plaintiff claimed that Mihaly, either mistakenly
or under the direction of the defendant, listed the mort-
gage on the 151 Booth Hill Road property, rather than
the 101 Golden Hill Street property, on the release
signed by the plaintiff. The plaintiff further alleged that
the defendant knew of the plaintiff’s mistake and
allowed the erroneous release to be recorded on the
land records in an attempt to defraud the plaintiff. The
plaintiff, therefore, sought to have the court reform
the release to reflect a release of the mortgage on 101
Golden Hill Street and to reinstate the mortgage on 151
Booth Hill Road. In the plaintiff’s demand for relief, he
requested a foreclosure of the 151 Booth Hill Road
mortgage, immediate possession of 151 Booth Hill
Road, attorney’s fees, costs of collection, interest pursu-
ant to General Statutes § 37-3a, one-third share of prop-
erty taxes, a deficiency judgment against the defendant,
damages, a reformation of the release signed by the
plaintiff, and any further equitable relief.
On October 27, 2011, the defendant filed an answer
to the plaintiff’s amended complaint. He maintained his
five special defenses as to count one of the amended
complaint. The defendant also raised special defenses
as to count two: Statute of limitations, as set forth in
General Statutes § 42a-3-118;4 the doctrine of laches;
and setoff.5 The defendant also filed a two count coun-
terclaim as to the second count of the plaintiff’s com-
plaint. First, the defendant alleged that he was entitled
to a setoff, pursuant to § 52-404,6 as a result of the
plaintiff’s occupancy of the 151 Booth Hill Road prop-
erty. In the second count of his counterclaim, the defen-
dant claimed that he was entitled to a setoff for his
contribution to joint projects with the plaintiff for which
he was not reimbursed, unpaid loans made to the plain-
tiff, the loss of his rightful inheritance from his mother
as a result of contributions made by her and not reim-
bursed by the plaintiff and profits from joint projects
that were not paid to the defendant by the plaintiff.
The defendant sought damages exceeding $15,000. On
February 27, 2012, the plaintiff filed a responsive plead-
ing to the counterclaim.
On November 7, 2011, the trial commenced.7 On April
23, 2012, while the plaintiff was presenting his evidence
on the complaint, the court granted the plaintiff permis-
sion to file a motion for summary judgment as to the
defendant’s counterclaim to the reformation count of
the plaintiff’s amended complaint. On May 14, 2012, the
plaintiff moved for summary judgment. Specifically, he
argued that neither of the counts in the defendant’s
counterclaim arose from the same transaction that was
the subject of the plaintiff’s complaint, neither count
arose from the making, validity or enforcement of the
note and mortgage contained in the plaintiff’s complaint
and the counterclaim was barred by the statute of limita-
tions.8 The defendant filed a motion for an extension
of time to respond on May 6, 2012, which was granted
until May 25, 2012. Two additional extensions were
sought by the defendant, but not acted upon by the
court.
On July 31, 2012, without any objection to the motion
being filed, the court issued a memorandum of decision
granting the plaintiff’s motion for summary judgment.
It concluded that both counts of the defendant’s coun-
terclaim, seeking a setoff, did not relate to the making,
validity or enforcement of the note and mortgage or
the claim for a reformation of the mortgage release,
and therefore were improper. It also determined that
the defendant had failed to establish the nature of the
alleged debts claimed by the defendant and therefore
the defendant had failed to demonstrate his right to a
setoff in the pleadings. Finally, it determined that many
of the allegations in the counterclaim were barred by the
applicable statutes of limitations. The court rendered
judgment in favor of the plaintiff with respect to the
defendant’s counterclaim. The court, sua sponte, also
rendered judgment in favor of the plaintiff as to the
complaint. In other words, the court rendered a judg-
ment on the plaintiff’s foreclosure and reformation
action, as well as the defendant’s counterclaim for a
setoff.9 No judgment was rendered on the separate parti-
tion action that had been commenced by the defendant
and consolidated with the action initiated by the
plaintiff.
On August 8, 2012, the defendant filed a motion to
open and to set aside the judgment. He argued that the
court decided the plaintiff’s motion without receiving
the defendant’s objection, failed to address the standard
of proof, and ruled on both the motion for summary
judgment and the trial on the merits. He further claimed
that the court did not address the issue of reformation
and failed to hear all the evidence. The plaintiff filed
an objection to the motion to open, which the court
sustained on October 24, 2012. During these proceed-
ings, no judgment was rendered or order made regard-
ing the partition action.
On November 2, 2012, the defendant filed an appeal,
designated as AC 35168, from the judgment rendered
on the plaintiff’s complaint and the defendant’s counter-
claim. The defendant referred to the partition action
when he filed his appeal.
On November 30, 2012, the plaintiff moved to dismiss
the appeal for lack of a final judgment because the
court had not determined the method of foreclosure,
the amount of debt and the value of the equity in the
property.10 The plaintiff further contended that the court
had not entered any orders or rendered a judgment
regarding the partition action. As a result, the plaintiff
maintained that the appeal should be dismissed for a
lack of a final judgment. We granted the plaintiff’s
motion and dismissed the appeal as it pertained to the
foreclosure count and the partition action. We further
concluded that the appeal from the judgment on the
defendant’s counterclaim and the denial of the motion
to open the judgment, to the extent it challenged the
judgment on that counterclaim, remained pending.
On June 6, 2013, the court, Radcliffe, J., granted the
plaintiff’s motion for a judgment of strict foreclosure,
found the debt to be $200,213.17, and the fair market
value of the property to be $126,000 and set the law
day for October 1, 2013. On July 5, 2013, the defendant
filed an appeal, designated as AC 35822, from the judg-
ment of strict foreclosure.11 The two appeals were con-
solidated.
On July 24, 2013, the court, Hon. Howard T. Owens,
Jr., judge trial referee, granted the plaintiff’s motion
for attorney’s fees in the amount of $90,301. On August
6, 2013, the defendant filed an amended appeal in AC
35822 from the order of the trial court awarding attor-
ney’s fees to the plaintiff’s counsel.
After oral argument in these appeals, we ordered the
court, sua sponte, to articulate the factual and legal
basis underlying its decision to enter judgment for the
plaintiff on his complaint.12 On May 15, 2015, the court
responded to our order as follows: ‘‘The legal basis for
its ruling is that the defendant failed to prove that the
alleged debt from the defendant . . . did not arise from
the execution or reformation of the release or even
from the making, validity or enforcement of the note
but arose independently from the transaction and this
if proved would be a claim for setoff. In order to prevail
by way of counterclaim the defendant’s allegations must
arise out of the transaction or one of the transactions
which is the subject of the plaintiff’s complaint. . . .
The special defenses and counterclaim do not relate to
the making, validity or enforcement of the note and
thus are invalid.’’
Before addressing the specific claims of the defen-
dant in this appeal, we set forth the relevant legal princi-
ples and our standard of review. ‘‘Practice Book § 17-
49 provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. A party moving for sum-
mary judgment is held to a strict standard. . . . To
satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary. (Citation omitted; internal quota-
tion marks omitted.) Ferri v. Powell-Ferri, 317 Conn.
223, 228, 116 A.3d 297 (2015); see also Townsend v.
Sterling, 157 Conn. App. 708, 717, 116 A.3d 873 (2015)
(‘‘[o]n appeal, we must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision of the
trial court’’ [internal quotation marks omitted]).
I
We first consider the defendant’s claim that the court
improperly rendered judgment for the plaintiff with
respect to the complaint. The defendant sets forth a
number of arguments to support his claim.13 We agree
with the defendant that the court improperly rendered
judgment in favor of the plaintiff with respect to the
complaint because that issue was outside the scope of
the motion for summary judgment filed by the plaintiff.
The motion for summary judgment was limited to the
defendant’s counterclaims, and it was improper for the
court to render a judgment on the complaint. We there-
fore reverse the judgment of strict foreclosure and the
award of attorney’s fees in appeals designated AC 35822
and AC 35822x01.
Additional facts are necessary for the resolution of
this issue. During the trial, on April 23, 2012, the parties
and the court discussed in chambers certain procedural
questions. A discussion on the record followed, and the
court expressly granted permission to the plaintiff to
file a motion for summary judgment with respect to
certain aspects of the case. The court then proceeded
to hear additional evidence on the plaintiff’s complaint.
The plaintiff directed his May 14, 2012 motion for
summary judgment solely at the defendant’s counter-
claim to the second count of the complaint, which
sought a reformation of the mortgage release. He fur-
ther argued: ‘‘1. Neither the First nor the Second Counts
of the Defendant’s Counterclaim arise from the same
transaction which is the subject of the Plaintiff’s Com-
plaint; 2. Neither the First nor the Second Counts of
the Defendant’s Counterclaim arises from the making,
validity or enforcement of the Note and Mortgage, sub-
ject of the Plaintiff’s Complaint; [and] 3. All of the claims
alleged in the Defendant’s Counterclaim are barred by
the Statutes of Limitations contained in . . . General
Statutes §§ 52-576, 42a-3-118, 45a-375 and/or the Statute
of Frauds contained in . . . General Statutes § 52-550.’’
Further, the motion concluded as follows: ‘‘As all more
specifically set forth in the Plaintiff’s Memorandum in
Support of Motion for Summary Judgment as to Defen-
dant’s Counterclaim to Second Count attached hereto
and incorporated by reference herewith.’’ The plaintiff’s
memorandum of law did not seek a judgment as to
the complaint, and concluded as follows: ‘‘[T]he Court
should grant the Plaintiff’s Motion for Summary Judg-
ment on the Defendant’s Counterclaim to the Second
Count.’’
In the court’s memorandum of decision, it noted that
the plaintiff had moved for summary judgment as to
the defendant’s counterclaim to the second count. The
court granted the plaintiff’s motion, but rendered judg-
ment for the plaintiff on both the complaint and the
counterclaim.14 On August 8, 2012, the defendant moved
to open and set aside the judgment. He noted that the
court ruled on the complaint, which was beyond the
scope of the defendant’s motion for summary
judgment.
On appeal, the defendant argues that the court
improperly rendered judgment on the plaintiff’s com-
plaint. Specifically, he contends that ‘‘[i]t was a huge
surprise that the court . . . proceeded to grant judg-
ment on the plaintiff’s complaint . . . .’’ We agree that
the court improperly rendered judgment on the plain-
tiff’s claim when the plaintiff’s motion for summary
judgment was limited to the defendant’s counterclaim.
We recently held that a trial court lacks authority to
render summary judgment on grounds not raised or
briefed by the parties that do not involve the court’s
subject matter jurisdiction. Greene v. Keating, 156
Conn. App. 854, 860, 115 A.3d 512 (2015). In that case,
the parties filed cross motions for summary judgment
regarding the plaintiff’s action for vexatious litigation.
Id., 858. In granting the defendant’s motion for summary
judgment, the trial court determined that General Stat-
utes § 52-568 set forth two distinct causes of action
under subdivisions (1) and (2), the plaintiff’s complaint
alleged an action only under subdivision (2), which
contains an element of malice, and because the plaintiff
had failed to offer any support for the allegation of
malice, the defendant was entitled to judgment as a
matter of law. Id., 859.
On appeal, the plaintiff claimed that the court acted
outside its authority in rendering summary judgment
on a ground neither raised nor briefed by the parties.
Id., 860. In agreeing with the plaintiff we first noted
that a court generally is limited to adjudicating issues
raised by the parties. Id. We further explained that nei-
ther party raised any issue regarding the plaintiff’s alle-
gation of malice. Id., 861. ‘‘Accordingly, we conclude,
under the facts of this case, that the court acted in
excess of its authority when it raised and considered,
sua sponte, a ground for summary judgment not raised
or brief by the parties.’’ Id.
We also are guided by our decision in Miller v. Bour-
goin, 28 Conn. App. 491, 613 A.2d 292, cert. denied, 223
Conn. 927, 614 A.2d 825 (1992). In that case, the parties
entered into a contract whereby the plaintiffs would
purchase a building lot and house that would be con-
structed by the defendants. Id., 492. The plaintiffs termi-
nated the contract on the basis that the defendants
failed to complete the house in a timely manner. Id., 493.
They commenced an action to recover their deposit,
alleging breach of contract and a violation of General
Statutes § 42-110b of the Connecticut Unfair Trade
Practices Act. Id., 493–94. The defendant filed an answer
and special defenses, as well as a two count counter-
claim to recover the difference between the contract
price and the actual selling price. Id., 494. The plaintiffs
moved for summary judgment on the complaint. Id.
The court rendered judgment on the complaint and the
counterclaim. Id.
We first determined that the court improperly had
rendered summary judgment in favor of the plaintiffs
with respect to the complaint. Id., 499. We then consid-
ered the defendants’ claim that the court improperly
had granted summary judgment with respect to the
counterclaim. Id. ‘‘The plaintiffs’ motion for summary
judgment was directed solely to the complaint. Neither
party had filed a motion for summary judgment on
the counterclaim and neither party had notice that the
counterclaim was at issue. In that situation, [a] court
may not grant summary judgment sua sponte. . . .
The issue first must be raised by the motion of a party
and supported by affidavits, documents or other forms
of proof.’’ (Emphasis added; internal quotation marks
omitted.) Id., 499–500. We concluded by stating that the
‘‘trial court was without authority to grant summary
judgment on the counterclaim.’’ Id., 500.
Our decision in Miller was based on Cummings &
Lockwood v. Gray, 26 Conn. App. 293, 600 A.2d 1040
(1991). In that case, the plaintiff commenced an action
for unpaid legal services. Id., 294–95. The defendants
filed an answer, special defenses and a counterclaim
alleging damages for legal malpractice. Id., 295. After
the pleadings were closed, the plaintiff moved for sum-
mary judgment, which the court granted and rendered
judgment in favor of the plaintiff on both the complaint
and the counterclaim. Id., 295–96. We concluded that
the court improperly rendered judgment on the counter-
claim. Id., 299. We reasoned that a court could not grant
summary judgment sua sponte; the issue needed to be
raised by a party. Id. The plaintiff expressly had moved
for summary judgment only as to the complaint. Id. We
further stated that ‘‘a party seeking summary judgment
on both a complaint and a counterclaim must file an
appropriate motion addressed to each [pleading].’’ Id.;
cf. Dime Savings Bank of New York, F.S.B. v. Wu, 34
Conn. App. 901, 902, 640 A.2d 164 (plaintiff made gen-
eral motion for summary judgment which allowed court
to render judgment on both complaint and counter-
claim), cert. denied, 229 Conn. 924, 642 A.2d 1213
(1994).
As demonstrated by these cases, it was improper for
the trial court in the present case to render judgment
for the plaintiff on the complaint. The plaintiff never
requested that judgment be rendered on his complaint.
Both his motion and memorandum of law in support
were limited to the counterclaim and set forth no argu-
ments directed to the complaint. The defendant, there-
fore, was deprived of the opportunity to present any
evidence or argument as to why summary judgment
was not warranted on the complaint.15 Because the
question of whether summary judgment on the com-
plaint was not raised by a party and supported by proof,
we conclude that the court erroneously rendered a judg-
ment, sua sponte, in favor of the plaintiff on his com-
plaint. Because the judgment of strict foreclosure and
subsequent award of attorney’s fees relied on the sum-
mary judgment rendered on the complaint, those judg-
ments cannot stand.
II
We now consider the defendant’s claim that the court
improperly rendered summary judgment in favor of the
plaintiff with respect to the counterclaim. The defen-
dant argues that the court improperly prevented him
from presenting evidence that the plaintiff owed the
defendant ‘‘a great deal of money on other partnership
ventures . . . .’’ Distilled to its essence, the defendant
contends that the court improperly rendered summary
judgment on the counterclaim on the basis that it did not
arise out of the same transaction that was the subject of
the complaint. We conclude that the defendant failed
to address the court’s alternative bases for granting
summary judgment, that the counterclaim was legally
insufficient and was barred by the applicable statutes
of limitation. Accordingly, because we cannot afford
the defendant any practical relief, this claim is moot.
‘‘Mootness raises the issue of a court’s subject matter
jurisdiction and is therefore appropriately considered
even when not raised by one of the parties. . . . Moot-
ness is a question of justiciability that must be deter-
mined as a threshold matter because it implicates [a]
court’s subject matter jurisdiction . . . . We begin
with the four part test for justiciability established in
State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982).
. . . Because courts are established to resolve actual
controversies, before a claimed controversy is entitled
to a resolution on the merits it must be justiciable.
Justiciability requires (1) that there be an actual contro-
versy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . .
(3) that the matter in controversy be capable of being
adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practi-
cal relief to the complainant. . . . [I]t is not the prov-
ince 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 . . . . In determining mootness, the dispositive
question is whether a successful appeal would benefit
the plaintiff or defendant in any way.’’ (Emphasis in
original; internal quotation marks omitted.) Horenian
v. Washington, 128 Conn. App. 91, 97–98, 15 A.3d
1194 (2011).
As stated previously, the defendant filed a two count
counterclaim directed at the plaintiff’s reformation
cause of action. In count one of the counterclaim, the
defendant alleged that the plaintiff was indebted to him
and that he had a claim of damages pursuant to § 52-
404.16 In count two of the counterclaim, the defendant
alleged that he was entitled to damages because the
plaintiff was ‘‘indebted to [him] in a sum much larger
than any damage claim asserted in the case . . . .’’ The
defendant specifically referenced his contributions to
joint ventures with the plaintiff for which he had not
been reimbursed, loans he had made to the plaintiff for
which he had not been reimbursed, contributions made
by the mother of the parties to joint projects that the
plaintiff had not repaid, causing the defendant to be
deprived of his ‘‘rightful inheritance’’ and profits from
joint projects for which the defendant had not been
paid.
In granting the plaintiff’s motion for summary judg-
ment, the court first determined that the two counts of
the counterclaim did not arise out of the transaction
that was the subject of the plaintiff’s complaint,17 and
therefore needed to be brought as a separate action. It
also concluded that the counterclaim, which was based
on ‘‘unspecified agreements and undetermined amounts
allegedly owed to the defendant from the plaintiff’’
failed to ‘‘affirmatively and adequately’’ allege a claim
for a setoff, pursuant to General Statutes § 52-139.18 It
explained that ‘‘[t]his court is left to guess what specific
debts are alleged to be due and legally enforceable
against the plaintiff, when such debts arose, whether
these obligations arose out of contract, and if so, what
were the relevant terms of the contract, whether there-
fore, the plaintiff has any defenses to such claims, i.e.
statutes of limitations, statutes of fraud, etc.; in short
what are the issues to be tried?’’19 Finally, the court
reasoned that because it was undisputed that all of the
defendant’s purported loans or contributions to joint
ventures or projects were completed before December
3, 2002, his counterclaim was barred by the statute
of limitations.20
In his appellate brief, the defendant did not address
the court’s conclusion that his counterclaim failed to
properly allege a claim of setoff or that his counterclaim
was barred by the statute of limitations. These determi-
nations by the court provide independent bases for
upholding the judgment rendered in favor of the plaintiff
on the counterclaim. ‘‘[W]here alternative grounds
found by the reviewing court and unchallenged on
appeal would support the trial court’s judgment, inde-
pendent of some challenged ground, the challenged
ground that forms the basis of the appeal is moot
because the court on appeal could grant no practical
relief to the complainant.’’ (Internal quotation marks
omitted.) Horenian v. Washington, supra, 128 Conn.
App. 99. Accordingly, we dismiss this portion of the
defendant’s appeal as moot.
In AC 35822 and 35822xA01, the judgment on the
plaintiff’s complaint, the judgment of strict foreclosure,
and the award of attorney’s fees are reversed and the
case is remanded for further proceedings according to
law. In AC 35168, the appeal from the judgment in
favor of the plaintiff on the defendant’s counterclaim
is dismissed.
In this opinion the other judges concurred.
1
As we discuss later in this opinion, the defendant filed a separate action
against the plaintiff and Thomas F. Bombero, trustee of the Thomas F.
Bombero Revocable Trust Agreement. The plaintiff, the defendant and
Thomas F. Bombero each owned a one-third interest in the property located
at 151 Booth Hill Road in Trumbull. The defendant also named Francis
Bombero, the wife of the plaintiff, and Ronald M. Bombero, Jr., the son of
the plaintiff, and the United States of America as defendants in this action.
The defendant sought a partition of 151 Booth Hill Road, a sale of that
property in accordance with General Statutes § 52-500, a division of the
assets, the appointment of a committee to make such a sale and any other
relief to which he was entitled. The plaintiff, with the other parties, filed
an answer, special defenses and counterclaim to the defendant’s partition
action.
The partition action was consolidated with the plaintiff’s foreclosure
action at the trial court. The trial court subsequently rendered judgment
on the plaintiff’s complaint and the defendant’s counterclaim, but never
addressed the partition action. On his appeal form, the defendant indicated
that his appeal included the partition action. In his appellate brief, the
defendant contends that the court rendered judgment on the partition action.
We granted the plaintiff’s motion to dismiss the appeal as to the partition
action for lack of a final judgment. Our review of the record reveals that
the court never rendered a judgment with respect to the partition action.
2
As noted by the trial court ‘‘[e]ach of the defendant’s five special defenses
was based on the defendant’s allegations that the subject note was paid in
full by the defendant and that the plaintiff had executed a release of the
mortgage securing the note.’’
3
The plaintiff, the defendant and a third brother, Thomas F. Bombero,
each owned a one-third interest in 151 Booth Hill Road.
4
General Statutes § 42a-3-118 (a) provides: ‘‘Except as provided in subsec-
tion (e), an action to enforce the obligation of a party to pay a note payable
at a definite time must be commenced within six years after the due date
or dates stated in the note or, if a due date is accelerated, within six years
after the accelerated due date.’’
5
The defendant claimed in his third special defense that he was entitled
to a setoff for the plaintiff’s occupancy of 151 Booth Hill Road. In his fourth
special defense, the defendant claimed a setoff for his contribution to joint
projects with the plaintiff for which no reimbursement had been made,
loans he made to the plaintiff for which he received no reimbursement,
contributions made by Emma Bombero, the mother of the parties, that were
not repaid and therefore deprived the defendant of part of his inheritance,
and for profits owed to the defendant from joint projects that he did not
receive.
6
General Statutes § 52-404 provides: ‘‘(a) A residuary legatee, when all
or any part of his legacy is withheld from him by an executor, may bring
an action for an accounting against the executor for the recovery thereof.
An executor, who is also residuary legatee, when all or any part of his
legacy is withheld from him by his coexecutor, may bring an action for an
accounting against his coexecutor for the recovery thereof.
‘‘(b) When two or more persons hold property as joint tenants, tenants
in common or coparceners, if one of them occupies, receives, uses or takes
benefit of the property in greater proportion than the amount of his interest
in the property, any other party and his executors or administrators may
bring an action for an accounting or for use and occupation against such
person and recover such sum or value as is in excess of his proportion.’’
7
The plaintiff’s amended complaint, containing a foreclosure count and
a reformation count, the defendant’s counterclaim to the plaintiff’s com-
plaint, and the defendant’s partition action were matters to be tried.
8
The plaintiff’s motion stated: ‘‘All of the claims alleged in the Defendant’s
Counterclaim are barred by the Statutes of Limitations contained in . . .
General Statutes §§ 52-576, 42a-3-118, 45a-375 and/or the Statute of Frauds
contained in . . . General Statutes § 52-550.’’
9
We have stated that ‘‘[u]nder Essex Savings Bank v. Frimberger, 26
Conn. App. 80, 80–81, 597 A.2d 1289 (1991), a judgment of foreclosure is
not a final judgment until the trial court determines the method of foreclosure
and the amount of the debt.’’ Capp Industries, Inc. v. Schoenberg, 104 Conn.
App. 101, 108–109 n.5, 932 A.2d 453, cert. denied, 284 Conn. 941, 937 A.2d
696 (2007). At the time the court rendered summary judgment, it did not
determine the method of foreclosure or the amount of debt, and therefore
it was not a final judgment.
10
The defendant filed an opposition to the motion to dismiss the appeal
on December 10, 2012.
11
In his preliminary statement of issues, filed pursuant to Practice Book
§ 63-4, the defendant claimed, inter alia, that the court improperly rendered
judgment for the plaintiff on the complaint.
12
See Practice Book §§ 61-10 (b) and 60-5.
13
In his appellate brief, the defendant argued, inter alia, that the evidence
was insufficient to support a finding of reformation of the release, the
plaintiff’s claim violated the statute of frauds, the court used an improper
standard of proof and that the court failed to address and improperly denied
the defendant’s special defenses.
14
The court iterated this conclusion in its response to our articulation
order.
15
We also note that the record is unclear as to whether the evidentiary
portion of the trial on the complaint had completed.
16
See footnote 4 of this opinion.
17
Practice Book § 10-10 provides in relevant part: ‘‘In any action for legal
or equitable relief, any defendant may file counterclaims against any plaintiff
. . . provided that each such counterclaim . . . arises out of the transac-
tion or one of the transactions which is the subject of the plaintiff’s com-
plaint . . . .’’
18
General Statutes § 52-139 provides: ‘‘(a) In any action brought for the
recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs,
or any of them, and the defendant or defendants, or any of them, one debt
may be set off against the other.
‘‘(b) No debt claimed by assignment may be set off unless the plaintiff
had notice, at the commencement of the action, that the debt was due
the defendant.
‘‘(c) If it appears upon the trial that the plaintiff is indebted to the defen-
dant, the court shall give judgment for the defendant to recover the balance
due of the plaintiff with his costs, except that no judgment may be given
against the plaintiff to recover the balance of a debt due only a part of
the defendants.’’
19
The court also briefly discussed the defense of recoupment and the
statute of frauds, General Statutes § 52-550.
20
Specifically, the court stated: ‘‘Since it is undisputed that, at the very
latest, such contributions or loans were completed no later than December
2, 2002 . . . and the defendant did not file his Counterclaim until October
26, 2011, the defendant’s claims for reimbursement and/or loans to joint
projects are barred by the statute of limitations as a matter of law and the
plaintiff’s Motion for Summary Judgment must be granted.’’