136 Field Point Circle Holding Co., LLC v. Razinski

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136 FIELD POINT CIRCLE HOLDING
COMPANY, LLC v. ALEXANDER
RAZINSKI ET AL.
(AC 37213)
Gruendel, Sheldon and Schuman, Js.
Argued October 20, 2015—officially released January 12, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Housing Session at Norwalk,
Rodriguez, J.)
David A. Slossberg, with whom was Meaghan M.
Ehrhard, for the appellants (named defendant et al.).
Stephen G. Walko, with whom, on the brief, was
Andrea C. Sisca, for the appellee (plaintiff).
Opinion
SCHUMAN, J. The issue on appeal is whether the
trial court erred when it rendered a judgment of posses-
sion for the plaintiff, 136 Field Point Holding Company,
LLC,1 in a summary process action without first con-
ducting the hearing prescribed by General Statutes
§ 47a-26b (d). We conclude that the court erred and,
accordingly, reverse the judgment of the court.
The defendants Alexander Razinski and Tanya Razin-
ski appeal from the judgment of possession. On appeal,
they claim that the judgment was ultra vires because
rendering it violated § 47a-26b (d).2 The plaintiff
responds that the self-executing provision of § 47a-26b
(d) did not apply at the phase of the proceedings in
which the court rendered a judgment of possession.
The plaintiff also claims that this court lacks subject
matter jurisdiction over the appeal because it is moot.
We agree with the defendants.
The record reveals the following relevant facts and
procedural history. The plaintiff and defendants entered
into a contractual relationship governed by a document
called the ‘‘Master Agreement.’’ The Master Agreement
states that ‘‘[the plaintiff] shall lease [136 Field Point
Circle, Greenwich (property)] to the [defendants] pur-
suant to the terms and conditions of this Agreement
and the residential lease agreement between the [plain-
tiff] and the [defendants] . . . .’’ The Master Agreement
also states that ‘‘[the plaintiff] hereby grants to the
[defendants] a call option . . . to purchase the Prop-
erty . . . .’’ The Master Agreement also provides spe-
cific details regarding the defendants’ lease of the
property, including a requirement that the plaintiff give
the defendants sixty days written notice as to whether
the plaintiff would grant a six month extension of the
lease. Finally, the Master Agreement provides that
‘‘[t]his agreement and the transaction contemplated
hereby shall be governed by and construed in accor-
dance with the domestic laws of the state of New York
. . . . [A]ny and all proceedings arising out of or relat-
ing to this Agreement and the transactions contem-
plated hereby shall be commenced and prosecuted
exclusively in . . . the state of New York . . . .’’
(Emphasis omitted.)
Following the Master Agreement, the parties entered
into a written lease for the property in question, a luxury
home in Greenwich. The lease provides that it is
‘‘Exhibit B to a certain Master Agreement’’ between the
parties and that ‘‘[a]ll terms, conditions and provisions
contained in the Master Agreement and relating to the
lease of the dwelling are hereby incorporated into this
lease by reference and made a part hereof. If any terms,
conditions or provisions in this lease are in conflict
with or inconsistent with the terms, conditions or provi-
sions of the Master Agreement, the Master Agreement
shall supersede and control.’’ (Emphasis omitted.)
The lease also sets forth the lease term of approxi-
mately one year, subject to the optional six month
extension. The original lease term is specified as run-
ning from May, 2012 to June 30, 2013. The lease sets
rent at $25,000 per month but allows the tenants to
defer up to $20,000 of that sum each month, to be paid
in full at the end of the lease term.
The lease expired by its terms on June 30, 2013. The
plaintiff did not initially grant the six month extension
contemplated by the Master Agreement, although it ulti-
mately did so, thus extending the lease until November
17, 2013. On July 3, 2013, the defendants commenced
an action (New York action) in the Supreme Court of
New York, County of New York (New York court). In
the New York action, the defendants sought numerous
forms of relief, including an injunction to prevent the
plaintiff from evicting them from the property, a decree
of specific performance requiring the plaintiff to extend
the term of the lease, and various declaratory judgments
to the effect that the defendants are equitable mortgag-
ors of the property, with attendant possessory rights
therein. The plaintiff asserted a defense and several
counterclaims. The plaintiff moved for summary judg-
ment, and, on October 28, 2014, the New York court
dismissed several counts of the defendants’ complaint,
determined that the defendants held no equitable inter-
est in the property, granted the plaintiff’s motion for
summary judgment as to one count of its counterclaim
for ejectment, and held that the plaintiff was entitled
to a judgment of possession.3 The defendants have
appealed that judgment.
While the New York action was pending, on Decem-
ber 2, 2013, the plaintiff served a notice to quit posses-
sion on the defendants. On December 26, 2013, the
plaintiff brought a summary process action in the trial
court, seeking to regain possession of the premises
and to evict the defendants. On January 23, 2014, the
plaintiff moved for an order requiring the defendants
to make use and occupancy payments. On March 13,
2014, the court granted this motion and set the pay-
ments at $25,000 per month, each payment due on the
twentieth day of each month. The court also issued the
following order: ‘‘If you do not make a payment in
accordance with this order, you will receive in the mail
an order from the clerk to file your answer to the com-
plaint. If you do not file your answer within four days
from the date that the clerk’s order was mailed, judg-
ment will be entered for the plaintiff. If you do file your
answer within four days from the date the clerk’s order
was mailed, the clerk will set this matter down for a
hearing not less than three or more than seven days
after your answer and the plaintiff’s reply, if any, are
filed.’’4 On March 25, 2014, the defendants filed an
answer with fourteen special defenses and a two
count counterclaim.
The parties do not dispute that the defendants made
their use and occupancy payments in March, April, and
May, 2014, but did not make one in June, 2014. Accord-
ingly, on July 11, 2014, the plaintiff filed its first of two
motions for a judgment of possession. On July 17, 2014,
the defendants made two use and occupancy payments
of $25,000 each. On July 22, 2014, the court denied the
plaintiff’s first motion for a judgment of possession.
The parties also do not dispute that the defendants did
not make a use and occupancy payment in August,
2014. Accordingly, on August 21, 2014, the plaintiff again
moved for a judgment of possession, which the court
granted on September 4, 2014. In its order, the court
wrote: ‘‘Defendant failed to comply with court order of
March 13, 2014.’’ The court did not hold a hearing on
the plaintiff’s motion for a judgment of possession. Fol-
lowing a court order, the defendants posted a bond of
$350,000, and they still possess the property.
Additional facts and procedural history will be set
forth where necessary.
I
Before we address the defendants’ claims, we must
determine whether this case is moot. ‘‘Mootness is a
question of justiciability that must be determined as a
threshold matter because it implicates [this] court’s
subject matter jurisdiction . . . .’’ (Internal quotation
marks omitted.) Putman v. Kennedy, 279 Conn. 162,
168, 900 A.2d 1256 (2006). The plaintiff claims that the
case is moot because (A) the lease has expired by its
terms; and (B) the judgment of the New York court
already entitles the plaintiff to possession, so practical
relief for the defendants is impossible in this appeal.
We disagree.
A
The plaintiff first argues that this case is moot
because the lease between the plaintiff and the defen-
dants has expired by its terms, rendering practical relief
impossible. The defendants counter that practical relief
is possible because a hearing on the merits would give
them an opportunity to argue that they have a legal
right to possess the property under the terms of their
complex transaction. The defendants also point out that
they have posted a bond pending appeal and that they
remain in possession of the premises, both of which
they could lose should this court decide against them.
We agree with the defendants.
‘‘When, during the pendency of an appeal, events
have occurred that preclude an appellate court from
granting any practical relief through its disposition of
the merits, a case has become moot. . . . It is a well-
settled general rule that the existence of an actual con-
troversy is an essential requisite to appellate jurisdic-
tion; it is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow.’’ (Internal quotation marks
omitted.) Peterson v. Robles, 134 Conn. App. 316, 320–
21, 39 A.3d 763 (2012).
As the plaintiff points out, this court has held that
an appeal from a judgment of possession in a summary
process action can become moot once the lease expires.
Sosnowski v. Monti, 36 Conn. App. 941, 942, 651 A.2d
1334 (1995); Evergreen Manor Associates v. Farrell, 9
Conn. App. 77, 78, 515 A.2d 1081 (1986). In Evergreen
Manor Associates, however, the tenant already had
been evicted by the time the appeal was decided. Ever-
green Manor Associates v. Farrell, supra, 78. The court
in that case highlighted this fact, in addition to the
expiration of the lease, when explaining why the case
was moot. Id.
Similarly, in Cheshire v. Lewis, 75 Conn. App. 892,
892–93, 817 A.2d 1277, cert. denied, 264 Conn. 905, 826
A.2d 177 (2003), which concerned an oral, month-to-
month lease, this court emphasized that it was the fact
that the defendant no longer possessed the premises
that made the appeal moot. The same was true in Castle
Apartments, Inc. v. Pichette, 34 Conn. App. 531, 533,
642 A.2d 57 (1994). That court noted that ‘‘[w]e have
consistently held that an appeal from a summary pro-
cess judgment becomes moot where, at the time of the
appeal, the defendant is no longer in possession of the
premises.’’ Id.By contrast, in Western Boot & Clothing Co. v. L’En-
fance Magique, Inc., 81 Conn. App. 486, 488 n.3, 840
A.2d 574, cert. denied, 269 Conn. 903, 852 A.2d 737(2004), this court noted that ‘‘[a]lthough the term of the
lease expired during the pendency of this appeal, the
defendant remains in possession of the premises. The
appeal, therefore, is not moot.’’ In sum, these cases
hold that the expiration of a lease moots an appeal in
a summary process action only if the defendant no
longer possesses the property.
In this case, the defendants still possess the property.
They also have posted a bond of $350,000. Practical
relief therefore remains available because a hearing on
the merits of the appeal could result in the defendants’
retaining possession, recovering their bond, or both.
B
The plaintiff next argues that this appeal is moot
because the New York court, in ruling upon the plain-
tiff’s summary judgment motion in the New York action,
concluded that the plaintiff was entitled to possess the
property. The plaintiff argues that, because the trial
court determined that New York law governs the defen-
dants’ rights under the Master Agreement, and because
the New York court has determined that the defendants
have no rights in the property and that the plaintiff is
entitled to immediate possession, no practical relief is
possible in this appeal. We again disagree.
The plaintiff is mistaken that the trial court deter-
mined that New York law governs the defendants’ rights
in the property under the Master Agreement. The clos-
est that the trial court came to the issue was to note,
in an order denying the plaintiff’s motion in limine to
exclude the Master Agreement, that ‘‘portions of the
Master Agreement are relevant to the eviction, special
defenses and counterclaim.’’ The trial court did not
make any conclusions about the construction or validity
of the choice of law and forum selection clauses in the
Master Agreement, or about the application of New
York law to the present case.
The plaintiff does not use the words ‘‘res judicata’’
or ‘‘full faith and credit’’ in its argument but it implies
that the New York court’s judgment should have a simi-
lar preclusive force on the trial court. Rather than
arguing that the trial court must recognize and enforce
the New York court’s judgment on the issues in this
summary process action, the plaintiff argues that the
existence of the New York judgment makes practical
relief impossible, and the appeal moot.
‘‘[T]he applicability of res judicata . . . presents a
question of law over which we employ plenary review.’’
Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010).
Res judicata is ‘‘applicable only to later, independent
proceedings . . . .’’ (Emphasis added.) 50 C.J.S. 240,
Judgments § 926 (2009). ‘‘The doctrine of res judicata
provides that [a] valid, final judgment rendered on the
merits by a court of competent jurisdiction is an abso-
lute bar to a subsequent action between the same par-
ties . . . upon the same claim or demand.’’ (Emphasis
added; internal quotation marks omitted.) Weiss v.
Weiss, supra, 459. ‘‘The judicial [doctrine] of res judicata
. . . [is] based on the public policy that a party should
not be able to relitigate a matter which it already has
had an opportunity to litigate.’’ (Emphasis added; inter-
nal quotation marks omitted.) Fink v. Golenbock, 238
Conn. 183, 192, 680 A.2d 1243 (1996).
The problem with the plaintiff’s argument is that it
attempts to give retrospective instead of merely pro-
spective preclusive force to the New York judgment.
The judgment in the trial court preceded that in the New
York action; the former was rendered on September 4,
2014, and the latter on October 28, 2014. Res judicata
is therefore inapplicable, which in this case also
answers the plaintiff’s mootness argument.5 Practical
relief remains possible because it is not yet clear what
the effect of the New York judgment, or of the forum
selection and choice of law clauses in the Master
Agreement, will have in the litigation to follow. The
case is not moot.
II
Having resolved the jurisdictional issue of mootness,
we turn to the merits of the appeal. The defendants
claim that the court erred by rendering a judgment of
possession without conducting the hearing required by
§ 47a-26b (d). Specifically, the defendants argue that
(1) because they had already answered the complaint
when the plaintiff moved for a judgment of possession,
§ 47a-26b (d) required the court to order a hearing
before rendering such a judgment; (2) a hearing is the
exclusive remedy under § 47a-26b for failure to make
use and occupancy payments when a defendant has
filed an answer; and (3) the court had no authority to
render judgment under § 47a-26b for failure to make a
use and occupancy payment. The plaintiff responds that
the self-executing provision of § 47a-26b (d) did not
apply at the phase of the proceedings in which the court
rendered a judgment of possession, and that a judgment
of possession was the only effective remedy available
to the plaintiff for the defendants’ failure to make use
and occupancy payments. We agree with the defendants
and therefore reverse the judgment.
‘‘Issues of statutory construction raise questions of
law, over which we exercise plenary review. . . . The
process of statutory interpretation involves the determi-
nation of the meaning of the statutory language as
applied to the facts of the case, including the question
of whether the language does so apply. . . .
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Internal quotation marks omitted.)
State v. Fernando A., 294 Conn. 1, 13–14, 981 A.2d
427 (2009).
Section 47a-26b (d) provides: ‘‘If the defendant fails
to make [use and occupancy] payments as ordered,
the clerk shall, immediately and without the filing of a
motion, order the defendant to file his answer and, if
the defendant fails to do so within four days of the
mailing of such order, judgment shall forthwith be
entered for the plaintiff. If the defendant files an answer
within such four-day period, the clerk shall set such
matter down for hearing not less than three nor more
than seven days after such answer and reply, if any,
are filed.’’
Section 47a-26b (d) does not directly address the
sequence of events now before this court, in which
the defendants already had filed their answer to the
summary process complaint months before they failed
to make timely use and occupancy payments.6 Instead,
the statute considers two scenarios and prescribes a
course of action for each. In the first scenario, the
defendant does not make a use and occupancy payment,
the clerk then orders the defendant to file his answer,
and the defendant does so within four days of the mail-
ing of that order. In this first scenario, the clerk is
supposed to ‘‘set such matter down for hearing . . . .’’
General Statutes § 47a-26b (d). The second scenario is
the same as the first, except that the defendant does
not file an answer as ordered within four days. In this
second scenario, the defendant defaults, and judgment
is rendered for the plaintiff. General Statutes § 47a-26b
(d). Both scenarios presume that the defendant has not
yet filed an answer at the time he misses a use and
occupancy payment. Neither specifically contemplates
the possibility that the defendant already has filed an
answer by that time.
To the extent that § 47a-26b (d) applies to these facts,
it should be interpreted consistently with the purposes
of summary process and the canons of statutory con-
struction. ‘‘The purpose of summary process proceed-
ings . . . is to permit the landlord to recover
possession on termination of a lease . . . without suf-
fering the delay, loss and expense to which he may be
subjected under a common-law action. . . . The pro-
cess is intended to be summary and is designed to
provide an expeditious remedy to the landlord seeking
possession.’’ (Citations omitted; internal quotation
marks omitted.) Prevedini v. Mobil Oil Corp., 164 Conn.
287, 292, 320 A.2d 797 (1973). It would frustrate this
purpose to interpret § 47a-26b (d) as allowing judges
to render judgments of possession for failure to make
a use and occupancy payment when the defendant has
already filed an answer. Such an interpretation would
punish the defendant for having timely and expedi-
tiously filed his answer and would encourage delayed
filing, both of which would defeat the ‘‘summary’’ nature
of summary process.
Furthermore, interpreting § 47a-26b (d) as the plain-
tiff advocates would yield an absurd result. ‘‘The canons
of statutory construction instruct us to interpret stat-
utes using our common sense to avoid absurd results.’’
Bengtson v. Commissioner of Motor Vehicles, 86 Conn.
App. 51, 60, 859 A.2d 967 (2004), cert. denied, 272 Conn.
922, 867 A.2d 837 (2005). If we interpreted the statute
as allowing a judge to render a judgment of possession
without a hearing in these circumstances, the class of
defendants who timely filed an answer and sought a
hearing before defaulting on use and occupancy pay-
ments would be treated the same as those who
defaulted and never filed an answer at all. We decline
to interpret § 47a-26b (d) as allowing that result without
a clear legislative direction that it is required.
The plaintiff nonetheless argues that § 47a-26b (d)
does not provide the exclusive remedy for failure to
make use and occupancy payments in a summary pro-
cess action. The plaintiff cites various authorities that
empower courts to enforce orders by rendering judg-
ment against recalcitrant parties. See, e.g., Practice
Book § 17-19 (‘‘[i]f a party fails to comply with an order
of a judicial authority . . . the party may be nonsuited
or defaulted by the judicial authority’’). Because render-
ing an adverse judgment ends the action, it is a remedy
that should be granted sparingly and judiciously.
Moreover, two cases suggest that § 47a-26b (d) does
set forth the exclusive remedy for failure to make use
and occupancy payments. In Messinger v. Laudano, 4
Conn. App. 162, 164–65, 493 A.2d 255, cert. denied, 196
Conn. 182, 495 A.2d 279 (1985), this court affirmed a
judgment of possession against defendants who did
not make use and occupancy payments in the amount
ordered. In so doing, we noted that the defendants’
disobedience left the clerk ‘‘no alternative’’ but to order
that an answer be filed. Id., 165. In Groton Townhouse
Apts. v. Covington, 38 Conn. Supp. 370, 373, 448 A.2d
221 (1982), the trial court had held the defendants in
contempt for failure to make use and occupancy pay-
ments. The Appellate Session of the Superior Court
concluded that ‘‘the contempt remedy was inappropri-
ate’’ for failure to make use and occupancy payments
because § 47a-26b contains ‘‘the remedy for noncompli-
ance’’ with an order to make use and occupancy pay-
ments. Id. Although neither case specifically holds that
the statute sets forth the exclusive remedy for noncom-
pliance with an order to make use and occupancy pay-
ments, each suggests that conclusion by resorting to
the statute and by rejecting other remedies. Without a
clear legislative mandate to the contrary, we decline to
break this pattern.
Finally, we note that, contrary to the plaintiff’s sug-
gestion, concluding that § 47a-26b (d) requires a hearing
in these circumstances does not ultimately deprive it of
a remedy. After a hearing, the court might well conclude
that the plaintiff is entitled to a judgment of possession.
Because the defendants already had filed an answer
at the time they failed to make use and occupancy
payments, they were entitled to a hearing on the merits
of the motion for a judgment of possession under § 47a-
26b (d). The court erred by not granting one.
The judgment is reversed and the case is remanded
for further proceedings.
In this opinion the other judges concurred.
1
In the summary process complaint, the plaintiff is 136 Field Point Circle
Holding Company, LLC, and the defendants are Alexander Razinski, Tanya
Razinski, Xenia Razinski, Invar International Holding, Inc., ‘‘John Doe(s),’’
and ‘‘Jane Doe(s).’’ On April 25, 2014, the plaintiff withdrew the case against
Xenia Razinski, Invar International Holding, Inc., ‘‘John Doe(s),’’ and ‘‘Jane
Doe(s),’’ leaving only Alexander Razinski and Tanya Razinski as the defen-
dants at the time of judgment and on appeal. We refer to Alexander Razinski
and Tanya Razinski as the defendants in this opinion. Although we also
discuss a New York action filed by the defendants, throughout this opinion
we refer to the parties by their roles in the Connecticut litigation.
2
General Statutes § 47a-26b (d) provides: ‘‘If the defendant fails to make
[use and occupancy] payments as ordered, the clerk shall, immediately and
without the filing of a motion, order the defendant to file his answer and,
if the defendant fails to do so within four days of the mailing of such order,
judgment shall forthwith be entered for the plaintiff. If the defendant files
an answer within such four-day period, the clerk shall set such matter down
for hearing not less than three nor more than seven days after such answer
and reply, if any, are filed.’’
3
The New York court did not rule on the applicability of the forum
selection clause or the choice of law clause in the Master Agreement.
4
This order tracks the language of § 47a-26b (d); see footnote 2 of this
opinion; which we discuss in part II of this opinion.
5
Contrary to the defendants’ suggestion, however, the mere fact that the
New York judgment is on appeal does not, by itself, bar the application of
res judicata because it does not vacate the judgment. See, e.g., Saunders
v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953) (‘‘[a]n appeal does not
vacate a judgment; it serves only to stay the enforcement of the rights
acquired by the successful litigant’’). To discern the effect of an appeal from
a New York judgment on the underlying judgment, we must look to New
York law. See Nowell v. Nowell, 157 Conn. 470, 475, 254 A.2d 889, cert.
denied, 396 U.S. 844, 90 S. Ct. 68, 24 L. Ed. 2d 94 (1969). In New York, a
pending appeal from a judgment does not affect the operation of res judicata.
See, e.g., Plaza PH2001 LLC v. Plaza Residential Owner LP, 98 App. Div.
3d 89, 98, 947 N.Y.S.2d 498 (2012); Matter of Amica Mutual Ins. Co., 85
App. Div. 2d 727, 728, 445 N.Y.S.2d 820 (1981).
6
That § 47a-26b (d) does not specifically prescribe what courts should
do in this precise procedural posture does not necessarily mean, as the
plaintiff argues, that the relevant provision is inapplicable. The statute still
sets forth a remedy for failure to make use and occupancy payments; the
omission of directions for this exact procedural posture therefore makes
the question before us one of how, and not whether, to apply the statute.