Purtill v. Cook ( 2020 )

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GEORGE M. PURTILL, ADMINISTRATOR (ESTATE
OF ADELMA GRENIER SIMMONS)
v. EDWARD WERNER COOK
(AC 42379)
Elgo, Devlin and Harper, Js.
Syllabus
The plaintiff, the administrator of the estate of A, sought, by way of summary
process, to regain possession of certain premises occupied by the defen-
dant. The defendant previously held a life estate in the premises but
had his life estate terminated by the Probate Court. Thereafter, the
plaintiff served the defendant with a notice to quit and, when the defen-
dant failed to vacate the premises, the plaintiff initiated a summary
process action. The defendant was defaulted for failure to plead and
the court rendered a judgment of possession in favor of the plaintiff.
The defendant filed a motion to open and an application for a stay of
execution. The court denied the motion to open but granted a limited,
final stay of execution for thirty days. The defendant subsequently filed
a claim of exemption from eviction on behalf of C Co., as occupant of
the property, which the court dismissed, and the defendant appealed
to this court. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion to open the judgment of default; the defendant failed to articulate
a good defense and had not met the standard for opening a judgment
pursuant to statute (§ 52-212) because he failed to demonstrate that he
had been prevented by mistake, accident or other reasonable cause
from making his defense and from timely filing his answer.
2. This court lacked subject matter jurisdiction over the defendant’s chal-
lenge to the trial court’s order granting him a limited stay because the
claim was moot; subsequent to the commencement of this appeal, an
automatic stay arose pursuant to statute (§ 47a-35), which was then
vacated by the trial court following the plaintiff’s motion to vacate
because the defendant failed to provide security as set forth in § 47-
35a, and this court denied the defendant’s motion to stay eviction and,
thus, there was no practical relief that this court could afford the defen-
dant by reviewing his claim regarding the propriety of the limited stay
granted in December, 2018; moreover, the defendant’s challenge to the
court’s ruling granting a limited stay was procedurally improper as issues
regarding a stay of execution cannot be raised on direct appeal.
3. This court lacked subject matter jurisdiction over the defendant’s claim
that the trial court improperly dismissed the claim of exemption for
eviction that he filed on behalf of C Co. because the defendant lacked
standing; the defendant was not an attorney licensed to practice law in
this state and, therefore, he lacked standing to maintain any claim on
behalf of C Co.
Argued November 20, 2019—officially released April 14, 2020
Procedural History
Summary process action brought to the Superior
Court in the judicial district of Tolland, where the defen-
dant was defaulted for failure to plead; thereafter, the
court, Macierowski, J., rendered a judgment of posses-
sion in favor of the plaintiff; subsequently, the defendant
filed motions to open the judgment, for a stay of execu-
tion, and for exemption from eviction on behalf of a
corporate occupant of the premises; thereafter, the
court, Macierowski, J., denied the motion to open,
granted a limited, final stay of thirty days, and dismissed
the claim of exemption, and the defendant appealed to
this court. Appeal dismissed in part; affirmed in part.
Edward W. Cook, self-represented, the appellant
(defendant).
George M. Purtill, with whom was Kirk D. Tavtigian,
for the appellee (plaintiff).
Opinion
ELGO, J. This case concerns a summary process
action commenced by the plaintiff, George M. Purtill,
the successor administrator of the estate of Adelma
Grenier Simmons (decedent). The self-represented
defendant, Edward Werner Cook, appeals from the
judgment of the trial court (1) denying his motion to
open a judgment of default for failure to plead, (2)
granting a limited stay of execution in his favor, and
(3) dismissing a claim for exemption from eviction that
he filed on behalf of ‘‘Caprilands Institute, Inc.’’ (corpo-
ration). We affirm the judgment of the trial court deny-
ing the defendant’s motion to open and dismiss the
remainder of his appeal.
The record reveals the following relevant facts. The
decedent previously owned real property located at 534
Silver Street in Coventry (property) that contained a
residence, various outbuildings, and approximately
sixty-two acres of land. The decedent died in 1997, and
the defendant thereafter was appointed executor of her
estate. Pursuant to the terms of her will, a charitable
entity was to operate an herb farm on the property ‘‘for
the improvement of public health and human life.’’ The
will also granted the defendant a life estate in the dece-
dent’s ‘‘personal residence’’ on the property. It further
obligated the defendant to maintain the property and
operate it as a charitable entity.
On September 29, 2017, the Probate Court removed
the defendant as the executor of the decedent’s estate
pursuant to General Statutes § 45a-242, concluding that
he had failed to manage the assets of the estate properly
and that he was embroiled in multiple conflicts of inter-
est, including his positions as creditor, life tenant,
trustee, and executor. See Cook v. Purtill, 195 Conn.
App. 828, 829, A.3d (2020). The court then appointed
the plaintiff as successor administrator of the dece-
dent’s estate.
In 2018, the Probate Court concluded that the defen-
dant had ‘‘allowed the entire property to fall into a state
of disrepair, rendering it useless as a charitable entity
without the infusion of a substantial amount of money.
. . . [T]he estate is without any liquid assets and in
fact owes a significant amount of money to various
creditors. . . . [The defendant’s] continued control
over the entire property has rendered it impossible for
the current administrator to exercise the necessary con-
trol . . . to develop it into the charitable enterprise the
[decedent] had envisioned.’’ The Probate Court further
found that the life estate in question ‘‘was not an abso-
lute grant of either title or authority. It came to him
together with the obligation both to maintain the prop-
erty and to use it for charitable purposes. [The defen-
dant] has done neither. The court concludes that no
one will be able to advance the charitable purpose as
long as [the defendant] is in the residence and has the
ability to exert any control over the property.’’ (Empha-
sis in original.) The Probate Court thus terminated the
defendant’s life estate in the personal residence on the
property and authorized the plaintiff ‘‘to seek and pro-
cure whatever orders are necessary to have [the defen-
dant] removed from the premises.’’ The defendant
appealed from that judgment to the Superior Court,
which rendered a judgment of dismissal on August
27, 2018.1
A notice to quit possession of the property was served
on the defendant on September 19, 2018. When the
defendant failed to vacate the property, the plaintiff
commenced this summary process action. The plaintiff
thereafter filed a motion for default for failure to plead,
which the court granted, and a judgment of possession
was entered in favor of the plaintiff on November 21,
2018.
The defendant filed a motion to open on November
26, 2018, which stated in its entirety: ‘‘I request that the
judgment in the case named above be opened because:
Plaintiff filed two notices and then withdrew one and
Defendant thought both were withdrawn.’’ On that same
date, the defendant filed an application for a stay of
execution. The corporation then filed a claim of exemp-
tion from eviction on December 3, 2018. That filing
listed the corporation as the occupant of the property
and the defendant as its attorney. Following a hearing
held on December 7, 2018, the court denied the defen-
dant’s motion to open and dismissed the corporation’s
claim of exemption. With respect to the application for
a stay of execution, the court granted ‘‘a limited, final
stay of execution for a period of thirty days to allow
the defendant to move animals, antiques, and whatever
other possessions that need to be removed from the
property,’’ subject to certain conditions. On December
12, 2018, the defendant filed the present appeal, in
which he challenges the propriety of all three rulings.
I
On appeal, the defendant claims that the court
improperly denied his motion to open the November
21, 2018 judgment of default for failure to plead. We
disagree.
Our review of a ruling on a motion to open a default
judgment is governed by the abuse of discretion stan-
dard. See Ruddock v. Burrowes, 243 Conn. 569, 571 n.4,
706 A.2d 967 (1998). ‘‘[T]he determination of whether
to set aside [a] default [for failure to plead] is within
the discretion of the trial court . . . and will not be
disturbed unless that discretion has been abused or
where injustice will result. In the exercise of its discre-
tion, the trial court may consider not only the presence
of mistake, accident, inadvertence, misfortune or other
reasonable cause . . . factors such as [t]he seri-
ousness of the default, its duration, the reasons for it
and the degree of contumacy involved . . . but also,
the totality of the circumstances, including whether the
delay has caused prejudice to the nondefaulting party.’’
(Internal quotation marks omitted.) Bohonnon Law
Firm, LLC v. Baxter, 131 Conn. App. 371, 381, 27 A.3d
384, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).
In reviewing the trial court’s exercise of its discretion,
we must ‘‘make every reasonable presumption in favor
of its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did.’’ (Internal quota-
tion marks omitted.) Chapman Lumber, Inc. v. Tager,
288 Conn. 69, 106, 952 A.2d 1 (2008).
In its February 15, 2019 memorandum of decision,
the court articulated the basis of its decision to deny
the defendant’s motion to open, stating: ‘‘In denying the
motion to open, the court found that the defendant
failed to articulate a good defense and also failed to
demonstrate that he had been prevented by mistake,
accident or other reasonable cause from making his
defense as required by General Statutes § 52-212. Nor
could the court find other reasonable cause to open the
judgment. The sole defense set forth in the defendant’s
answer stated that he purportedly leased his life tenancy
to the [corporation] but this did not provide him with
a good defense to this summary process action brought
against him individually based upon the termination of
his life tenancy. At the hearing, the defendant’s argu-
ments once again focused on alleged errors and impro-
prieties in the Probate Court proceedings. The defen-
dant did not raise a defense or allege a right to occupy,
separate from his life tenancy which was terminated
by a final judgment not reviewable by this court. The
court was also not persuaded that the plaintiff’s mis-
taken filing of both a motion for default for failure to
appear and a motion for default for failure to plead,
followed by a withdrawal of the former, was such an
accident or mistake as to prevent the defendant from
filing a timely answer. The withdrawal clearly related
to only the one motion. The filing of the motions in
the first instance, put the defendant on notice of his
obligation to answer the complaint. Furthermore, the
defendant had appeared and actively participated in
pleadings, yet still failed to timely file his answer.
Accordingly, the court found that the defendant had
not met the standard for opening the judgment pursuant
to . . . § 52-212.’’
On appeal, the defendant has provided no good basis
to disturb that conclusion. We therefore conclude that
the court did not abuse its discretion in denying the
defendant’s motion to open.
II
The defendant also challenges the December 7, 2018
order of the trial court granting a limited stay of execu-
tion in his favor ‘‘for a period of thirty days to allow
the defendant to move animals, antiques, and whatever
other possessions that need to be removed from the
property . . . .’’ In light of intervening circumstances
that arose subsequent to the commencement of this
appeal, we conclude that this claim is moot.
‘‘Mootness presents a circumstance wherein the issue
before the court has been resolved or had lost its signifi-
cance because of a change in the condition of affairs
between the parties. . . . Since mootness implicates
subject matter jurisdiction . . . it can be raised at any
stage of the proceedings. . . . A case becomes moot
when due to intervening circumstances a controversy
between the parties no longer exists. . . . An issue is
moot when the court can no longer grant any practical
relief.’’ (Internal quotation marks omitted.) Statewide
Grievance Committee v. Burton, 88 Conn. App. 523,
529, 871 A.2d 380 (2005), aff’d, 282 Conn. 1, 917 A.2d
966 (2007). Our review of the question of mootness is
plenary. Wozniak v. Colchester, 193 Conn. App. 842,
852, 220 A.3d 132, cert. denied, 334 Conn. 906, 220 A.3d
37 (2019).
The following undisputed procedural facts are rele-
vant to this claim. Subsequent to the commencement
of this appeal, the defendant filed an additional motion
for a stay of execution, which the trial court denied.
The defendant then filed a motion for review of that
order with this court. This court granted review and
vacated the trial court’s order, noting that an automatic
stay arose under General Statutes § 47a-35.
On January 22, 2019, the plaintiff filed a motion to
vacate that automatic stay, claiming that (1) the defen-
dant’s appeal was taken solely for purposes of delay
and (2) the defendant had failed to post a bond, as
required under § 47a-35. The trial court held a hearing
on February 1, 2019, at which the defendant acknowl-
edged that he no longer resided at the property. In its
subsequent memorandum of decision, the trial court
found that ‘‘the defendant has taken an appeal solely
for the purpose of delay and that the due administration
of justice requires that any appellate stay be termi-
nated.’’ The court further found that ‘‘any prolonged
stay of the November 21, 2018 judgment of possession
will impede efforts to secure and care for the [property]
and fulfill [the decedent’s] charitable intentions. Fur-
ther delay will cause continuing harm to the estate,
whose property the Probate Court found the defendant
neglected and squandered over the course of twenty
years, undermining the Probate Court’s order.’’ In addi-
tion, the court found that the defendant had ‘‘failed to
post a bond and also failed to move to set a bond or
to make use and occupancy payments. Having failed
to comply with the affirmative duty to provide security,
as set forth in § 47a-35a, the stay of execution provided
for in [that statute] does not apply.’’ (Internal quotation
marks omitted.) The court thus granted the plaintiff’s
motion to terminate the automatic appellate stay.
The defendant filed a motion seeking reconsideration
and reargument of that decision, which the trial court
denied. The defendant then filed a motion to stay evic-
tion with this court on March 1, 2019. By order dated
March 20, 2019, this court denied the defendant’s
motion.
As a result, there is no practical relief that this court
can afford the defendant by reviewing his claim regard-
ing the propriety of the limited stay that the court
granted in December 2018. Because it has become moot,
this court lacks subject matter jurisdiction over that
claim.2
III
The defendant also contends that the court improp-
erly dismissed the claim of exemption from eviction
that he filed on behalf of the corporation. That claim
requires little discussion.
In dismissing the claim of exemption, the court stated
that it ‘‘cannot accept a pleading on behalf of a corpora-
tion from anyone other than its attorney.’’ That ruling
comports with well established precedent. As this court
observed in dismissing a similar claim, ‘‘the defendant’s
first claim is improper because he is not an attorney
and, therefore, may not raise claims on behalf of an
entity or individual other than himself. Any person who
is not an attorney is prohibited from practicing law,
except that any person may practice law, or plead in
any court of this state in his own cause. General Statutes
§ 51-88 (d) (2). The authorization to appear [as a self-
represented party] is limited to representing one’s own
cause, and does not permit individuals to appear . . .
in a representative capacity. In Connecticut, a corpora-
tion may not appear pro se. . . . A corporation may
not appear by an officer of the corporation who is not
an attorney.’’ (Internal quotation marks omitted.) Certo
v. Fink, 140 Conn. App. 740, 747 n.4, 60 A.3d 372 (2013);
see also Henderson v. Lagoudis, 148 Conn. App. 330,
333 n.1, 85 A.3d 53 (2014) (‘‘[a] nonattorney does not
have authority to represent a corporation’’).
The defendant in the present case is not an attorney
licensed to practice law in this state. He, therefore,
lacks standing to maintain any claim on behalf of the
corporation. Accordingly, this court lacks subject mat-
ter jurisdiction over the defendant’s claim. See J.E.
Robert Co. v. Signature Properties, LLC, 309 Conn. 307,
318, 71 A.3d 492 (2013) (‘‘[w]here a party is found to
lack standing, the court is consequently without subject
matter jurisdiction to determine the cause’’ (internal
quotation marks omitted)); Connecticut Assn. of
Boards of Education, Inc. v. Shedd, 197 Conn. 554, 557,
499 A.2d 797 (1985) (‘‘[i]f no standing exists, this court
lacks jurisdiction to decide the [claim] on its merits’’).
The appeal is dismissed with respect to the defen-
dant’s challenge to the court’s determinations regarding
the stay of execution and the corporation’s claim for
exemption; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The defendant did not appeal from that judgment of dismissal. Although
the defendant now alleges, in both his appellate brief and at oral argument
before this court, that the Probate Court acted ‘‘lawlessly,’’ the propriety of
the Probate Court proceedings is not properly before this court. See Boisvert
v. Gavis, 332 Conn. 115, 137 n.11, 210 A.3d 1 (2019); Russell v. Russell, 61
Conn. App. 106, 107 n.1, 762 A.2d 523 (2000).
2
We further note that the defendant’s challenge to the court’s ruling on
his application for a stay of execution is procedurally improper. As this
court has explained, ‘‘[p]ursuant to Practice Book § 61-14, [t]he sole remedy
for any party desiring the court to review an order concerning a stay of
execution shall be by motion for review under Section 66-6. Issues regarding
a stay of execution cannot be raised on direct appeal.’’ (Internal quotation
marks omitted.) Chief Disciplinary Counsel v. Rozbicki, 150 Conn. App.
472, 486 n.10, 91 A.3d 932, cert. denied, 314 Conn. 931, 102 A.3d 83 (2014).