Patrick v. 111 Clearview Drive, LLC ( 2024 )

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LOIS PATRICK v. 111 CLEARVIEW
DRIVE, LLC, ET AL.
(AC 45450)
Bright, C. J., and Elgo and Cradle, Js.
Syllabus
The plaintiff sought to quiet title to certain real property to which the
defendant held title. B Co. had previously commenced a tax foreclosure
action involving the property against, inter alia, J and H. During the
pendency of the foreclosure action, the plaintiff filed multiple motions
with the court attempting to intervene, alleging that she had acquired
a two-thirds interest in the property on the death of J by descent as J’s
heir, and a one-third interest in the property by quitclaim deed from
the heirs of H. A judgment of foreclosure by sale was rendered in the
foreclosure action. The court thereafter denied the plaintiff’s motion to
intervene on behalf of her two-thirds interest in the property as untimely
and dismissed her motion to open the foreclosure judgment on behalf
of her one-third interest in the property as moot. Her additional attempts
to litigate her alleged interest in the property were also unsuccessful,
including an appeal to this court from the trial court’s denial of her
motion to reargue and reconsider the order approving the foreclosure
sale. The plaintiff then commenced the present quiet title action. The
defendant filed a motion to strike the plaintiff’s complaint as legally
insufficient. The trial court granted the motion to strike and rendered
judgment dismissing the action for lack of subject matter jurisdiction
after determining, sua sponte, that the plaintiff was collaterally attacking
the foreclosure judgment. Held:
1. The trial court properly dismissed the plaintiff’s action on the ground
that it lacked subject matter jurisdiction to adjudicate her claims because
they constituted an attempt to collaterally attack a prior judgment and
were, therefore, moot and nonjusticiable:
a. The plaintiff could not prevail on her claim that, because she was
unsuccessful in intervening in the foreclosure action on behalf of her
two-thirds interest in the property, she was denied a constitutionally
protected right to be heard prior to the deprivation of that property,
which would entitle her to challenge the validity of the foreclosure
judgment: in the foreclosure action, the plaintiff did not appeal from the
denial of her motion to intervene and did not appeal from that decision
when she appealed from the court’s order denying her motion to recon-
sider its approval of the foreclosure sale, and, even if she had appealed
after the foreclosure judgment had been rendered, her appeal likely
would have been dismissed as moot, as allowing the plaintiff to challenge
the foreclosure judgment in a new action when she failed to appeal from
the denial of her motion to intervene in the foreclosure action was
what made her collateral attack improper; accordingly, the trial court’s
decision to not allow the plaintiff to collaterally attack the foreclosure
judgment did not deprive the plaintiff of her due process rights, as she
had sufficient process available in the form of an appeal from the denial
of her motion to intervene in the foreclosure action.
b. The plaintiff could not prevail on her claim that, because H never
received proper notice of the foreclosure action, the foreclosure judg-
ment did not have preclusive effect against a collateral attack as to H’s
one-third interest in the property because that judgment was null against
a party who was not properly served: even if it is assumed that H was
not properly served in the foreclosure action, the plaintiff already sought
to advance her claim relating to the alleged lack of personal jurisdiction
over H in that action in her motion to open the foreclosure judgment
and subsequent motion to reconsider, and, although a judgment rendered
without jurisdiction is subject to direct or collateral attack, a litigant
cannot utilize both processes; moreover, in the present case, the court
denied the plaintiff’s motion to open the foreclosure judgment, the plain-
tiff did not seek to intervene based on her one-third interest in the
property, and she did not appeal from the dismissal of her motion to
open in the foreclosure action; accordingly, because the plaintiff had an
opportunity to challenge the foreclosure judgment directly by way of an
appeal from the judgment dismissing her motion to open, her attempt
to utilize the present action as a substitute for such an appeal was
procedurally impermissible.
2. The plaintiff could not prevail on her claim that the trial court improperly
failed to adjudicate whether she was an omitted party from the foreclo-
sure action pursuant to statute (§ 49-30); there was no need for B Co.
to bring an omitted party action pursuant to § 49-30 to foreclose the
plaintiff’s purported interests in the property because the plaintiff, albeit
unsuccessfully, had already attempted to challenge the foreclosure judg-
ment on the basis of those interests, and, once those attempts failed
and the plaintiff did not timely appeal from the court’s orders rejecting
her claims, she became bound by the foreclosure judgment, and, there-
fore, there was no reason to resort to § 49-30.
Argued September 14, 2023—officially released March 26, 2024
Procedural History
Action seeking to quiet title to certain real property
owned by the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the court, Welch, J., granted the named
defendant’s motion to strike the complaint and ren-
dered judgment dismissing the action, from which the
plaintiff appealed to this court. Affirmed.
Earle Giovanniello, for the appellant (plaintiff).
Jason P. Gladstone, for the appellee (named defen-
dant).
Opinion
ELGO, J. This appeal arises from the dismissal of a
quiet title action. The plaintiff, Lois Patrick, initiated
the action against the defendant 111 Clearview Drive,
LLC,1 alleging that she has an interest in certain real
property located in Bridgeport, as to which the defen-
dant holds title. After a hearing on the defendant’s
motion to strike the plaintiff’s amended complaint, the
trial court dismissed the action for lack of subject mat-
ter jurisdiction after determining, sua sponte, that the
plaintiff was making an improper collateral attack on
a prior judgment. On appeal, the plaintiff claims that the
court (1) improperly concluded that it lacked subject
matter jurisdiction to adjudicate the quiet title action
because the plaintiff was collaterally attacking an underly-
ing foreclosure action, and (2) failed to adjudicate
whether the plaintiff may be considered an omitted
party under General Statutes § 49-30. We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On August 29, 2016,
Benchmark Municipal Tax Services, Ltd. (Benchmark),
recorded a notice of lis pendens on the Bridgeport land
records for the property known as 44 Wentworth Street
(property).2 On September 26, 2016, Benchmark com-
menced a tax foreclosure action involving the property
against Erma Jean Roundtree (Erma Jean), Eunice H.
Roundtree (Eunice), and others not relevant to this
quiet title action. See Benchmark Municipal Tax Ser-
vices, Ltd. v. Roundtree, Superior Court, judicial district
of Fairfield, Docket No. CV-XX-XXXXXXX-S (Benchmark
action and/or Benchmark judgment). The plaintiff was
not a named party in the Benchmark action. A judgment
of foreclosure by sale was rendered in the Benchmark
action on December 12, 2016. After the judgment was
opened, a second judgment of foreclosure by sale was
rendered on December 4, 2017, and the court ordered
a sale date of May 5, 2018. The sale of the property
proceeded as scheduled, with Khurram Ali emerging as
the successful bidder. The court approved the sale on
August 28, 2020, and Ali conveyed the property to the
defendant on February 6, 2021, by quitclaim deed. Dur-
ing and after the pendency of the Benchmark action,
the plaintiff filed multiple motions with the court in an
attempt to intervene, asserting an ownership interest
in the property. The plaintiff claimed that she had
acquired a two-thirds interest in the property on Octo-
ber 29, 2017, upon the death of Erma Jean by descent
as Erma Jean’s only heir, and a one-third interest in the
property by quitclaim deed on April 17, 2021, from the
heirs of Eunice, who died on June 5, 2020. The court
denied the plaintiff’s motion to intervene on behalf of
the two-thirds interest in the property as untimely and
dismissed the plaintiff’s May 10, 2021 motion to open
and vacate the Benchmark judgment on behalf of the
one-third interest in the property as moot.3 The plaintiff
made additional attempts to litigate her alleged interest
in the property, all of which were unsuccessful.4
The plaintiff commenced this quiet title action in May,
2021, and, in July, 2021, filed a revised complaint in
accordance with General Statutes § 47-315 regarding her
alleged interests in the property. The defendant filed a
motion to strike,6 alleging that ‘‘the plaintiff has failed
to state a legally sufficient revised complaint and [was]
barred’’ from pursuing her claim on five grounds.7 The
accompanying memorandum of law in support of the
motion to strike argued, inter alia, that the plaintiff’s
two-thirds interest in the property, purportedly acquired
as Erma Jean’s heir, was ‘‘moot’’ due to a failure to ‘‘suc-
cessfully appeal the [Benchmark] judgment . . . .’’The
plaintiff filed a memorandum of law in opposition to
the motion to strike, in which she rebutted each of the
five grounds alleged in the defendant’s motion to strike.
The plaintiff also proffered that the prior foreclosure
judgment in the Benchmark action had not foreclosed
the one-third interest in the property that she received
by quitclaim deed because the predecessor in interest,
Eunice, had ‘‘not been properly served’’ in that action and,
thus, was an omitted party.
On January 18, 2022, the court held a hearing on the
motion to strike. During that hearing, the court inquired
if the defendant’s allegation that the court no longer
had subject matter jurisdiction over the property due
to the transfer of title following the approval of the
foreclosure sale was, in fact, an argument that the plain-
tiff’s quiet title action was a collateral attack on the
judgment. The defendant’s counsel answered affirma-
tively. The plaintiff’s counsel responded by stating that
the present quiet title action was not a collateral attack
‘‘because [the Benchmark judgment is not] effective
against somebody who wasn’t properly served.’’
In a memorandum of decision issued on March 7,
2022, the court dismissed this action as ‘‘an improper
collateral attack on the foreclosure judgment.’’ Citing
to Rider v. Rider, 200 Conn. App. 466, 479, 239 A.3d
357 (2020), the court stated that the plaintiff ‘‘ ‘must
resort to direct proceedings to correct perceived
wrongs. . . . A collateral attack on a judgment is a
procedurally impermissible substitute for an appeal.’ ’’
The court also raised concerns regarding subject matter
jurisdiction, citing Ajadi v. Commissioner of Correc-
tion, 280 Conn. 514, 911 A.2d 712 (2006), for the proposi-
tion that ‘‘[a] court lacks discretion to consider the
merits of a case over which it is without [subject matter]
jurisdiction . . . .’’ (Internal quotation marks omitted.)
Id., 533. In response, the plaintiff filed a motion to
reargue the dismissal of the quiet title action, which
the court denied, and this appeal followed.
‘‘A determination regarding a trial court’s subject mat-
ter jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Stones Trail, LLC v. Weston, 174 Conn. App. 715,
735, 166 A.3d 832, cert. dismissed, 327 Conn. 926, 171
A.3d 59 (2017), and cert. denied, 327 Conn. 926, 171
A.3d 60 (2017).
The court characterized the quiet title action as ‘‘an
improper collateral attack on the [Benchmark] judg-
ment’’ and justified its dismissal by citing Peck v. State-
wide Grievance Committee, 198 Conn. App. 233, 248,
232 A.3d 1279 (2020), stating: ‘‘A court properly may
dismiss a case that constitutes an improper collateral
attack on a judgment. . . . The reason for this is that
the court can offer no practical relief to the party collat-
erally attacking the prior judgment, rendering the action
nonjusticiable.’’ (Citation omitted.) Accordingly, the
court concluded that it lacked subject matter jurisdic-
tion over the quiet title action because the collateral
attack rendered the action nonjusticiable.
Our review of the record focuses on whether the
court’s determination that it lacked subject matter juris-
diction was legally and logically correct. In this regard,
we are mindful that ‘‘[i]t is well established that this
court may rely on any grounds supported by the record
in affirming the judgment of a trial court.’’ State v.
Burney, 288 Conn. 548, 560, 954 A.2d 793 (2008).
On appeal, the plaintiff claims that the court improp-
erly concluded that it lacked subject matter jurisdiction
to adjudicate the quiet title action. Before addressing
the plaintiff’s specific claims, we set forth the relevant
legal principles regarding the trial court’s subject matter
jurisdiction.
‘‘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. . . . It is well estab-
lished that, in determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged.’’ (Internal quotation marks
omitted.) CHFA-Small Properties, Inc. v. Elazazy, 157
Conn. App. 1, 14, 116 A.3d 814 (2015).
As a court of general jurisdiction, the Superior Court
is competent to entertain quiet title actions. Quiet title
actions are governed by § 47-31 (f), which provides in
relevant part: ‘‘The court shall hear the several claims
and determine the rights of the parties . . . and render
judgment determining the questions and disputes and
quieting and settling the title to the property.’’ See also,
e.g., CHFA-Small Properties, Inc. v. Elazazy, supra,
157 Conn. App. 14 (trial court had subject matter juris-
diction over quiet title action). Accordingly, the Supe-
rior Court has subject matter jurisdiction to adjudicate
quiet title actions generally.
A court, however, ‘‘may have subject matter jurisdic-
tion over certain types of controversies in general, but
may not have jurisdiction in any given case because
the issue is not justiciable.’’ (Internal quotation marks
omitted.) Peck v. Statewide Grievance Committee,
supra, 198 Conn. App. 247. ‘‘[J]usticiability comprises
several related doctrines, namely, standing, ripeness,
mootness and the political question doctrine.’’ (Internal
quotation marks omitted.) Id. With these principles in
mind, we consider the plaintiff’s claims.
I
The plaintiff challenges the court’s propriety in dis-
missing the quiet title action after determining that the
action was an improper collateral attack on the Bench-
mark judgment.8 The plaintiff argues that, because she
was unsuccessful in intervening in the Benchmark
action on behalf of her two-thirds interest in the prop-
erty from Erma Jean, she was denied a constitutionally
protected right to be heard prior to the deprivation of
property, which would entitle her to now challenge the
validity of that judgment. The plaintiff also argues that
there is no collateral attack on the prior judgment
regarding the one-third interest in the property that
she acquired from Eunice’s heirs because a judgment
cannot be effective if it is rendered against a party who
was never properly served. Because the plaintiff had
opportunities to challenge the foreclosure judgment
directly by way of an appeal in the Benchmark action,
her quiet title action that was premised on her claimed
interests in the property constitutes an impermissible
collateral attack on the Benchmark judgment.
As an initial matter, we examine whether the court
properly categorized the plaintiff’s quiet title action as
a collateral attack. ‘‘A collateral attack is an attack upon
a judgment, decree or order offered in an action or
proceeding other than that in which it was obtained,
in support of the contentions of an adversary in the
action or proceeding . . . .’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Stones Trail, LLC v. Wes-
ton, supra, 174 Conn. App. 737.
Here, the second prayer for relief in the plaintiff’s
amended complaint in the quiet title action specifically
asks the court to ‘‘[vacate] the foreclosure judgment in
[the Benchmark action] . . . .’’ Initiating a new action
with the goal of vacating a prior judgment from a differ-
ent action is, by definition, a collateral attack on a
judgment.9
Our Supreme Court has noted that ‘‘collateral attacks
on [final judgments] are disfavored . . . [because the]
law aims to invest judicial transactions with the utmost
permanency consistent with justice. . . . [A] litigant
. . . must resort to direct proceedings to correct per-
ceived wrongs . . . . A collateral attack on a judgment
is a procedurally impermissible substitute for an
appeal.’’ (Citations omitted; internal quotation marks
omitted.) Sousa v. Sousa, 322 Conn. 757, 771–72, 143
A.3d 578 (2016). The court further explained that ‘‘col-
lateral attacks are strongly disfavored . . . because
such belated litigation undermines the important princi-
ple of finality.’’ (Internal quotation marks omitted.)
Id., 786.
Although collateral attacks are strongly disfavored,
the fact that an action constitutes a collateral attack
does not warrant automatic dismissal of the action.
Exceptions exist in rare cases in which ‘‘a litigant can
show an absence of subject matter jurisdiction that
makes the prior judgment of a tribunal entirely invalid
. . . .’’ (Emphasis omitted; internal quotation marks
omitted.) Id., 771. Additionally, ‘‘[i]f a court has never
acquired jurisdiction over a defendant [by proper ser-
vice of process] . . . any judgment ultimately entered
is void and subject to vacation or collateral attack.’’
(Internal quotation marks omitted.) Angiolillo v. Buck-
miller, 102 Conn. App. 697, 713, 927 A.2d 312, cert.
denied, 284 Conn. 927, 934 A.2d 243 (2007). Further-
more, ‘‘[a] court properly may dismiss a case that consti-
tutes an improper collateral attack on a judgment’’; Peck
v. Statewide Grievance Committee, supra, 198 Conn.
App. 248; if ‘‘the court . . . [can] afford no remedy,’’
which renders the matter moot and nonjusticiable. Id.,
252. The issue thus becomes whether the plaintiff’s
collateral attack on the Benchmark judgment is permit-
ted as one of the rare exceptions, or if the dismissal of
this quiet title action was appropriate because the court
could not afford a remedy, because the plaintiff failed
to ‘‘resort to direct proceedings to correct perceived
wrongs . . . .’’ (Internal quotation marks omitted.)
Sousa v. Sousa, supra, 322 Conn. 771.
Our review of that question of law is plenary. We
therefore examine the record to determine whether the
court’s dismissal of the quiet title action as an improper
collateral attack was legally and logically correct. We
address separately each of the plaintiff’s claimed inter-
ests in the property.
A
We first address the plaintiff’s claim with respect to
her two-thirds interest in the property that she purport-
edly acquired by descent from Erma Jean.
In support of her quiet title action, the plaintiff filed
a revised complaint as is required by § 47-31 (b). The
revised complaint asserts that Erma Jean’s two-thirds
interest in the property passed to the plaintiff on Octo-
ber 29, 2017, as the sole heir and equitable owner of
the interest upon Erma Jean’s death. By the time that
the plaintiff received this interest, a judgment of foreclo-
sure by sale had already been rendered on December
12, 2016. A second judgment of foreclosure by sale was
then rendered on December 4, 2017. The plaintiff first
moved to intervene in the Benchmark action on April
6, 2018, and simultaneously filed a motion to open and
vacate the Benchmark judgment. The court denied
those motions and noted in the denial of the motion to
intervene that the ‘‘petition is not timely under [General
Statutes] § 52-325 (a), which authorizes intervention
after a notice of lis pendens is filed (in this case, filed
on August 29, 2016, in the Bridgeport land records) and
the application to intervene is filed ‘prior to the date
when the judgment or decree in such action is ren-
dered.’ This motion to intervene was filed on April 5,
2018, more than fifteen months after the entry of judg-
ment of foreclosure by sale.’’ The plaintiff did not appeal
from the judgment of dismissal of her motion to inter-
vene. Instead, the plaintiff filed another motion to open
the judgment and vacate orders on September 8, 2020,
which was dismissed on September 16, 2020, because
the plaintiff was not a party to the underlying Bench-
mark action. On September 16, 2020, the plaintiff filed
a motion to reargue and reconsider the order approving
the sale of the property, which was denied on Septem-
ber 30, 2020. From that decision, the plaintiff filed an
appeal with this court, which dismissed the appeal on
January 13, 2021, for lack of standing as the plaintiff
was not a party to the underlying Benchmark action.
The plaintiff now argues that, by denying the motion
to intervene in the Benchmark action, the ‘‘court denied
[her] the right to protect her interest in the property,’’
amounting to a fundamental denial of due process under
the fourteenth amendment to the United States consti-
tution. The plaintiff states that she ‘‘was not a party to
the underlying foreclosure action, was not allowed to
intervene and was not allowed to appeal.’’ The plaintiff
further argues that, ‘‘[b]ecause [she] was not allowed
to intervene in the [Benchmark] action, she should be
allowed to question the validity of the [Benchmark]
judgment’’ through this quiet title action. We are not
persuaded.
‘‘[T]he law has established appropriate proceedings
to which a judgment party may always resort when he
deems himself wronged by the court’s decision. . . .
If he omits or neglects to test the soundness of the
judgment by these or other direct methods available
for that purpose, he is in no position to urge its defective
or erroneous character when it is pleaded or produced
in evidence against him in subsequent proceedings.’’
(Internal quotation marks omitted.) Sousa v. Sousa,
supra, 322 Conn. 771. Here, a direct appeal was the
proper channel to test the validity of the court’s May
1, 2018 denial of the plaintiff’s motion to intervene in the
Benchmark action. Contrary to the plaintiff’s assertion,
nothing prevented her from appealing that decision.
The law is clear that, if ‘‘[a]n unsuccessful applicant
for intervention . . . can make a colorable claim to
intervention as a matter of right [then] on appeal the
court has jurisdiction to adjudicate both his claim to
intervention as a matter of right and to permissive inter-
vention.’’ (Internal quotation marks omitted.) BNY
Western Trust v. Roman, 295 Conn. 194, 204, 990 A.2d
853 (2010). This court also has stated that ‘‘[m]ost post-
judgment appeals filed by would-be intervenors will be
moot because the relief sought, i.e., intervention into
the underlying action, cannot be granted once the action
has gone to judgment. . . . [T]o avoid potential moot-
ness problems, would-be intervenors who have a color-
able claim to intervention as a matter of right should
appeal immediately from the denial of their motion to
intervene.’’ Wallingford Center Associates v. Board of
Tax Review, 68 Conn. App. 803, 806 n.3, 793 A.2d 260(2002).
In the Benchmark action, the plaintiff did not timely
appeal from the denial of her motion to intervene. Nor
did she appeal from that decision when she appealed
from the court’s order denying her motion to reconsider
its approval of the sale of the property. Even if she had
appealed after the judgment of foreclosure had been
rendered, her appeal likely would have been dismissed
as moot for the reasons we articulated in Wallingford
Center Associates. See id. That being the case, allowing
the plaintiff to now ‘‘question the validity’’ of the Bench-
mark judgment in a new action, when the plaintiff failed
to appeal from the denial of her motion to intervene,
is precisely what makes this collateral attack improper.
‘‘A collateral attack on a judgment is a procedurally
impermissible substitute for an appeal. . . . The recur-
rent theme in our collateral attack cases is that the
availability of an appeal is a significant aspect of the
conclusiveness of a judgment. . . . Consequently, a
party who fails to appeal from [a] . . . decision may
not use a different action as a substitute for that appeal
to achieve a de novo determination of a matter upon
which they failed to take a timely appeal. . . . A court
properly may dismiss a case that constitutes an improper
collateral attack on a judgment. . . . The reason for
this is that the court can offer no practical relief to the
party collaterally attacking the prior judgment, render-
ing the action nonjusticiable.’’ (Citations omitted; inter-
nal quotation marks omitted.) Peck v. Statewide Griev-
ance Committee, supra, 198 Conn. App. 247–48.
For these reasons, the trial court’s decision to not
allow the plaintiff to collaterally attack the Benchmark
judgment in this action on the basis of Erma Jean’s
two-thirds interest in the property does not deprive the
plaintiff of her due process rights. The plaintiff had
sufficient process available to her in the form of an
appeal from the denial of her motion to intervene in
the Benchmark action. Similarly, the availability of that
appeal, which she did not pursue, means that the limited
exceptions to the prohibitions on collateral attacks do
not apply to any challenge to the judgment based on
Erma Jean’s two-thirds interest in the property. The trial
court’s dismissal for lack of subject matter jurisdiction
based on the two-thirds interest in the property that
the plaintiff acquired from Erma Jean was appropriate
because the matter was moot, and thus nonjusticiable,
as ‘‘the court can offer no practical relief to the party
collaterally attacking the prior judgment . . . .’’ Peck
v. Statewide Grievance Committee, supra, 198 Conn.
App. 248.
B
The plaintiff also asserts that she acquired a one-
third interest in the property via a quitclaim deed on
April 17, 2021, from Eunice’s heirs. She further alleges
that Eunice never received proper notice of the foreclo-
sure action. The plaintiff thus argues that the Bench-
mark judgment does not have preclusive effect against
a collateral attack as to Eunice’s one-third interest in
the property because a prior judgment is null against
a party who was not properly served.
The plaintiff’s argument is not without merit. Although
strongly disfavored, not all collateral attacks are imper-
missible. This court has noted that ‘‘[s]ervice of process
on a party in accordance with the statutory require-
ments is a prerequisite to a court’s exercise of in perso-
nam jurisdiction over that party. . . . If a court has
never acquired jurisdiction over a defendant or the sub-
ject matter . . . any judgment ultimately entered is
void and subject to vacation or collateral attack.’’ (Inter-
nal quotation marks omitted.) Angiolillo v. Buckmiller,
supra, 102 Conn. App. 713.
If we take the facts alleged in the complaint as true,
it follows that, if Eunice never received proper service
of the foreclosure action, any judgment rendered in that
action would be null as to her. The plaintiff’s implied
argument follows that, as the holder of Eunice’s one-
third interest in the property acquired by quitclaim deed
from Eunice’s heirs, she stands in Eunice’s shoes and
can assert that the judgment is null as to her also, and,
thus, properly may collaterally attack the Benchmark
judgment. We are not persuaded.
The problem with the plaintiff’s argument is that she
already sought to advance her claim based on the
alleged lack of personal jurisdiction over Eunice in the
Benchmark action in her May, 2021 motion to open
and subsequent motion to reconsider. Thus, although
a judgment rendered without jurisdiction is subject to
direct or collateral attack, a litigant cannot utilize both
processes. Indeed, when, as in the present case, ‘‘the
lack of jurisdiction is not entirely obvious, the critical
considerations are whether the complaining party had
the opportunity to litigate the question of jurisdiction
in the original action, and, if [she] did have such an
opportunity, whether there are strong policy reasons for
giving [her] a second opportunity to do so.’’ (Emphasis
omitted; internal quotation marks omitted.) Sousa v.
Sousa, supra, 322 Conn. 772.
The court in the Benchmark action approved the sale
on August 28, 2020, and the plaintiff acquired her one-
third interest in the property from Eunice’s heirs on
April 17, 2021. On May 10, 2021, although the plaintiff
had not been made a party to the foreclosure action,
the plaintiff’s counsel filed a motion to open and vacate
the judgment of foreclosure by sale, asserting that
Eunice was never served. In support of her motion to
open, the plaintiff included an affidavit from Bernice
Roundtree, the sister of Eunice, averring that Eunice
was living in a nursing facility in Bridgeport in August,
2016, and that Eunice had not lived at the property after
2014. On June 2, 2021, the motion was dismissed as
moot ‘‘[p]er oral record . . . .’’ On June 16, 2021, the
plaintiff’s counsel filed a motion to reconsider that dis-
missal, and on the same day the court entered an order
stating that the court ‘‘reviewed this motion for recon-
sideration and is not changing its ruling on the underly-
ing motion.’’ The plaintiff neither sought to intervene
based on her one-third interest in the property from
Eunice, nor appealed from the dismissal of her motion
to open in the Benchmark action. Accordingly, because
the plaintiff had an opportunity to challenge the foreclo-
sure judgment directly by way of an appeal from the
judgment dismissing her motion to open in the Bench-
mark action, her attempt to use the underlying quiet
title action as a substitute for that appeal is procedurally
impermissible. See Peck v. Statewide Grievance Com-
mittee, supra, 198 Conn. App. 248 (‘‘a party who fails
to appeal from [a] . . . decision may not use a different
action as a substitute for that appeal to achieve a de
novo determination of a matter upon which they failed
to take a timely appeal’’ (internal quotation marks omit-
ted)).
We therefore conclude that the court properly dis-
missed the quiet title action because the plaintiff’s
claims based on both her two-thirds interest and her
one-third interest in the property constitute impermissi-
ble collateral attacks on the Benchmark judgment and
are, therefore, moot and nonjusticiable.
II
The plaintiff’s final argument is that the court’s sua
sponte dismissal denied her an opportunity to advance
an omitted party argument pursuant to § 49-30, which
could offer relief without disturbing the Benchmark
judgment. The plaintiff argues that § 49-30 applies because
‘‘[n]o omitted party action has been brought to foreclose
out [her] interest in the property,’’ which was acquired
‘‘as heir to [Erma Jean’s] estate and as the successor
in interest to [Eunice’s] interest . . . .’’ The plaintiff’s
claim warrants little discussion.
Section 49-30 provides in relevant part: ‘‘When a mort-
gage or lien on real estate has been foreclosed and one
or more parties owning any interest in . . . such real
estate . . . has been omitted or has not been fore-
closed . . . because of improper service of process or
for any other reason . . . [s]uch omission or failure to
properly foreclose such party or parties may be com-
pletely cured and cleared by deed or foreclosure or
other proper legal proceedings to which the only neces-
sary parties shall be the party acquiring such foreclo-
sure title, or his successor in title, and the party or
parties thus not foreclosed, or their respective succes-
sors in title.’’
There was no need for Benchmark to bring an omitted
party action to foreclose the plaintiff’s purported inter-
ests in the property because the plaintiff, albeit unsuc-
cessfully, had already attempted to challenge the
Benchmark judgment on the basis of those interests.
Once those attempts failed and the plaintiff did not
timely and properly appeal from the court’s orders
rejecting her claims, she became bound by the Bench-
mark judgment. Thus, there is no reason to resort to
§ 49-30.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Also named as defendants in the operative complaint were Khurram Ali;
Benchmark Municipal Tax Services, Ltd.; city of Bridgeport; Water Pollution
Control Authority for the City of Bridgeport; Department of Social Services;
and Aquarion Water Company of Connecticut. A motion for default for
failure to appear was granted against the defendants Department of Social
Services and Aquarion Water Company of Connecticut. A motion for default
for failure to plead was granted against the defendants Benchmark Municipal
Tax Services, Ltd., city of Bridgeport, and Water Pollution Control Authority
for the City of Bridgeport. Khurram Ali did not file an appellate brief or
otherwise participate in this appeal. Accordingly, we refer to 111 Clearview
Drive, LLC, as the defendant in this opinion.
2
We note the well established principle that a court ‘‘may take judicial
notice of the file in another case, whether or not the other case is between
the same parties . . . .’’ (Citation omitted; internal quotation marks omit-
ted.) Rogalis, LLC v. Vazquez, 210 Conn. App. 548, 556, 270 A.3d 120 (2022).
3
On April 6, 2018, after acquiring the two-thirds interest in the property
from Erma Jean, the plaintiff filed motions to intervene and to open and
vacate the Benchmark judgment. Those motions were denied as untimely
under General Statutes § 52-325 (a) on May 1, 2018, and the plaintiff did
not appeal those determinations. On May 10, 2021, after obtaining Eunice’s
one-third interest in the property by quitclaim deed, the plaintiff filed a
motion to open and vacate the Benchmark judgment. That motion was
dismissed as moot ‘‘[p]er oral record’’ on June 2, 2021. On June 16, 2021,
the plaintiff filed a motion to reconsider the court’s dismissal of the motion
to open and vacate the judgment. The court issued an order on June 16,
2021, stating that it had ‘‘reviewed this motion for reconsideration and [was]
not changing its ruling on the underlying motion.’’ The plaintiff did not
appeal that order.
4
The plaintiff’s additional attempts to challenge the Benchmark judgment
included the following. On August 31, 2020, the plaintiff filed a request to
stay the proceedings until a legal representative could be appointed to
represent the interests of Eunice, who died on June 5, 2020. That request
was dismissed on September 16, 2020. The plaintiff filed another motion to
open the judgment and vacate orders on September 8, 2020, which was
dismissed on September 16, 2020, because the plaintiff was not a party to
the underlying action. On September 16, 2020, the plaintiff filed a motion
to reargue and reconsider the order approving the sale of the property,
which was denied on September 30, 2020. From that decision, the plaintiff
filed an appeal with this court, which was dismissed on January 13, 2021,
for lack of standing as the plaintiff was not a party to the underlying action.
5
General Statutes § 47-31 (a) provides in relevant part: ‘‘An action [to
settle title or claim an interest in real property] may be brought by any
person claiming title to, or any interest in, real . . . property . . . against
any person who may claim to own the property . . . or to have any interest
in the property . . . for the purpose of determining such . . . interest or
claim, and to clear up all doubts and disputes and to quiet and settle the
title to the property. Such action may be brought whether or not the plaintiff
is entitled to the immediate or exclusive possession of the property.’’
6
A motion to strike is governed by Practice Book § 10-39, which provides
in relevant part that it is to ‘‘be used whenever any party wishes to contest:
(1) the legal sufficiency of the allegations of any complaint . . . to state a
claim upon which relief can be granted; or (2) the legal sufficiency of any
prayer for relief in any such complaint . . . .’’
7
In its motion to strike, the defendant enumerated five grounds that
allegedly defeated, as a matter of law, the plaintiff’s quiet title action: ‘‘(1)
[General Statutes] § 49-15; (2) the failure to redeem the real property; (3)
. . . the death of a mortgagor subsequent to the service of process is of no
moment in resetting law days . . . (4) the heirs and devisees do not need
to be substituted as parties after good service on the original mortgagor;
[and] (5) . . . the plaintiff’s failure to open or set aside the judgment within
the statutorily allotted time.’’
8
We note the unusual procedural posture of this case, to the extent that
the court was presented with a motion to strike that raised an argument
that the court lacked subject matter jurisdiction. Jurisdictional issues are
more properly raised in a motion to dismiss. Nevertheless, a party may raise
an issue of subject matter jurisdiction at any time. Further, although the
defendant’s motion to strike questioned whether the court had subject matter
jurisdiction to consider the plaintiff’s quiet title action, the motion did not
explicitly argue that the quiet title action constituted a collateral attack on
the Benchmark judgment. During the hearing on that motion, the court sua
sponte raised that question, and it did not thereafter request that the parties
brief the issue before ultimately dismissing the case. However, the plaintiff
has not raised on appeal a claim of procedural error as a basis for reversal.
Further, the defendant did raise the issue of mootness in its memorandum
of law in support of the motion to strike, arguing that the plaintiff’s two-
thirds interest in the property was moot due to her failure to successfully
appeal from the Benchmark judgment. Although the defendant’s framing of
the issue did not mention the phrase ‘‘collateral attack,’’ the defendant’s
argument was substantively the same as the court’s analysis.
As was discussed in Peck v. Statewide Grievance Committee, supra, 198
Conn. App. 247, mootness implicates justiciability. For a case to be justicia-
ble, ‘‘practical relief to the complainant’’ must be available as the result of
an adjudication. (Internal quotation marks omitted.) Id. In Peck, this court
affirmed the trial court’s dismissal as nonjusticiable because the plaintiff
failed to appeal a prior order; id., 252; and, as a result, ‘‘the court [could]
offer no practical relief to the party collaterally attacking the prior judgment,
rendering the action nonjusticiable.’’ Id., 248. As a result, ‘‘[a] court properly
may dismiss a case that constitutes an improper collateral attack on a
judgment’’; id., 247; if ‘‘the court . . . [can] afford no remedy,’’ which ren-
ders the matter moot and nonjusticiable. Id., 252. Here, the issue of mootness
was raised by the defendant, and, because mootness and justiciability are
questions of law, and the plaintiff failed to raise an argument on appeal of
procedural error, we proceed to the merits of the claim.
9
Black’s Law Dictionary defines the phrase ‘‘collateral attack’’ as, inter
alia, ‘‘[a]n attack on a judgment in a proceeding other than a direct appeal;
esp., an attempt to undermine a judgment through a judicial proceeding in
which the ground of the proceeding (or a defense in the proceeding) is that
the judgment is ineffective.’’ Black’s Law Dictionary (11th Ed. 2019) p. 329.