Deutsche Bank National Trust Co. v. Fraboni

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DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. ROBERT FRABONI ET AL.
(AC 40704)
Keller, Elgo and Bright, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property of
the defendant F. After the trial court rendered a judgment of strict
foreclosure, it denied F’s second motion to open and extended the law
day to June 28, 2016. On June 24, 2016, F filed his third motion to open.
On June 27, 2016, F filed an untimely appeal from the denial of his
second motion to open, and the plaintiff thereafter filed a motion to
dismiss that appeal. F subsequently filed a motion for permission to file
a late appeal. This court granted the plaintiff’s motion to dismiss the
June 27 appeal and denied F’s motion for permission to file a late appeal.
Thereafter, the trial court held a hearing on the defendant’s June 24,
2016 motion to open, during which the parties argued whether an appel-
late stay arose as a result of F’s filing of the untimely June 27 appeal
and, thus, whether the June 28 law day had expired. Subsequently, the
trial court granted the joint motion of the parties to reserve for appellate
advice two questions of law: (1) whether, except as otherwise provided
by statute or other law, the filing of an appeal after the time to file an
appeal has expired automatically stays the trial court proceedings in a
noncriminal matter pursuant to the applicable rule of practice (§ 61-11)
until the final determination of the cause; and (2) if the answer to the
first question was negative, whether the filing of F’s untimely appeal in
this action resulted in an automatic stay of execution, which tolled the
running of his law day, pursuant to § 61-11. Held:
1. The first reserved question was answered in the negative: pursuant to
the clear language of § 61-11 (a), unless otherwise provided by statute
or other law, in noncriminal cases, an automatic stay is in place until
the time to file an appeal has expired and, thus, the automatic stay
expires when the applicable appeal period expires and the filing of a
late appeal does not initiate an automatic stay of execution in a noncrimi-
nal case, and although § 61-11 does not set forth the requirement that
an appeal be timely for an automatic stay to remain in place, it was
clear from an examination of the rule as a whole that only a timely
appeal stays the proceedings until the final determination of the cause;
moreover, the arguments raised by F under various subsections of § 61-
11 did not support a finding that an automatic stay is available for a
late appeal, and although F claimed that a defendant in a civil action
could be harmed if a late appeal did not reinstate the § 61-11 automatic
stay, there was nothing absurd or unworkable about a system that allows
a plaintiff to enforce a judgment rendered in its favor when the defendant
has not properly exercised his right to challenge that judgment, espe-
cially given that a defendant who files a late appeal has remedies avail-
able to stop the execution of the judgment, such as requesting a
discretionary stay or filing a motion to open the judgment before the
running of the law days in a strict foreclosure.
2. The second reserved question was answered in the negative; although
the denial of a motion to open a judgment of strict foreclosure is an
appealable final judgment itself and distinctly appealable from the under-
lying judgment, if the appeal from that judgment is not timely filed and
no request for a discretionary stay is made and granted, the law day
will not be tolled and the appeal will become moot if the law day passes
before the appeal is decided, and under the facts as stipulated by the
parties, F’s late appeal from the denial of his second motion to open
the judgment of strict foreclosure did not revive the automatic stay to
toll the running of the law day, as the judgment was stayed for twenty
days pursuant to § 61-11 after the trial court denied F’s second motion
to open, that automatic stay expired twenty days later when F failed
to file a timely appeal or to request a discretionary stay, and, therefore,
the running of the law day was not tolled.
Argued March 19—officially released June 26, 2018
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the court, Mintz, J., rendered
a judgment of strict foreclosure; thereafter, the court
denied the named defendant’s motion to open, and the
named defendant appealed to this court, which dis-
missed the appeal; subsequently, the plaintiff filed an
application for execution of ejectment; thereafter, the
court, Mintz, J., pursuant to the parties’ stipulation,
reserved two questions of law for the advice of this
court.
David M. Bizar, with whom, on the brief, was J.
Patrick Kennedy, for the appellant (plaintiff).
Marc T. Miller, with whom, on the brief, was Dina
E. Nathanson, for the appellee (named defendant).
Opinion
BRIGHT, J. This appeal comes to us on a reservation
of a legal issue pursuant to General Statutes § 52-2351
and Practice Book § 73-1.2 The stipulation of the parties
presents two questions for the advice of this court: (1)
‘‘[Except where otherwise provided by statute or other
law,] [d]oes the filing of an appeal ‘after the time to file
an appeal has expired’ . . . automatically stay the trial
court proceedings in a noncriminal case pursuant to
Practice Book § 61-11 until the final determination of
the cause?’’3 and (2) ‘‘If the answer to the first question
is not categorically no, then did the filing of [the] defen-
dant’s appeal in this instance ‘after the time to file an
appeal [had] expired’ result in an automatic stay of
execution [pursuant to Practice Book § 61-11] which
tolled the running of his law day.’’ We answer both
questions in the negative.
The parties stipulated to the following relevant facts.
‘‘This is a judicial foreclosure action commenced by
[the] plaintiff4 by complaint dated March 4, 2010 . . . .
The Superior Court granted . . . a judgment of strict
foreclosure . . . on February 6, 2014. . . . [The]
defendant’s law day was extended multiple times—
most recently on May 9, 2016, when the Superior Court
denied [the] defendant’s April 29, 2016 motion to open
the judgment and extended his law day, sua sponte, to
June 28, 2016. . . . On June 24, 2016, [the] defendant
filed another motion to open [the] judgment (his third
in this case) in the Superior Court. . . . On June 27,
2016—[forty-nine] days after the judgment [was ren-
dered]—he filed an appeal [from the court’s May 9,
2016 denial of his second motion to open], which was
assigned [docket number] AC 39352 in [the Appellate]
Court. . . . On July 5, 2016, [the] plaintiff filed a motion
to dismiss the appeal, arguing that it was untimely, that
the late appeal did not create an appellate stay, and
that, because [the] defendant’s June 28 law day had
passed without [the] defendant exercising the equity of
redemption, title had already vested absolutely in [the]
plaintiff, rendering the case moot. . . . On July 8, 2016,
[the] defendant filed a motion for permission to file a
late appeal. . . . On July 13, 2016, [the] defendant filed
an objection to the motion to dismiss. . . . On July 18,
2016, [the] plaintiff filed a response in opposition to
[the] defendant’s motion to file a late appeal. . . . On
September 14, 2016, this court granted [the] plaintiff’s
motion to dismiss . . . . Also on September 14, 2016,
this court denied [the] defendant’s motion for permis-
sion to file a late appeal. . . .
‘‘On November 7, 2016, the Superior Court held a
hearing on [the] defendant’s June 24, 2016 motion to
open. . . . During the hearing, the parties argued about
whether an appellate stay ever arose [by the defendant
having filed the late appeal] and, thus, whether [the]
defendant’s June 28 law day had expired. . . . [The]
defendant initially claimed that this court had remanded
the case to set a new law day, but the Superior Court
pointed out that no remand language appeared in the
order dismissing the appeal. . . . The Superior Court
also expressed concern that, by demanding that [the]
plaintiff seek a new law day, [the] defendant was creat-
ing a new ‘perpetual motion machine’ like the one
described in First Connecticut Capital, LLC v. Homes
of Westport, LLC, 112 Conn. App. 750, [966 A.2d 239]
(2009). . . . Reluctant to rule on an issue it deemed
novel, the Superior Court instructed . . . counsel to
consult the Practice Book to figure out a way to certify
the issue to the Appellate Court. . . .
‘‘On December 5, 2016, [the] plaintiff filed an applica-
tion for execution of ejectment (‘application’). . . .
The next day, [the] defendant filed an objection to the
application . . . . On January 9, 2017, the parties
appeared before the Superior Court for a hearing on
[the] plaintiff’s application. . . . At the hearing, [the]
defendant once again conceded that the appeal was
untimely, but argued that the appellate stay provided
by Practice Book § 61-11 applied. . . . [T]he parties
[thereafter] filed a joint request to reserve the question
to this court, which [then] was granted by the Superior
Court on May 8, 2017.’’ (Footnote added.) This court
preliminarily accepted the joint reservation of the
parties.
We first determine whether we have jurisdiction to
decide the reserved questions of law; if we do have
jurisdiction, we next determine whether the questions
presented appropriately may be answered by way of a
reservation. State v. Wang, 312 Conn. 222, 228, 92 A.3d
220 (2014). ‘‘Section 52-235 (a) confers jurisdiction in
this court to consider reserved questions ‘in all cases
in which an appeal could lawfully have been taken to
said court had judgment been rendered therein.’ ’’ State
v. Wang, supra, 228; see Practice Book § 73-1 (b) (‘‘[r]es-
ervation requests may be brought only in those cases
in which an appeal could have been filed directly to
the supreme court, or to the appellate court, respec-
tively, had judgment been rendered’’).
In this case, following a judgment of strict foreclosure
by the trial court and this court’s dismissal of the defen-
dant’s late appeal from the denial of a motion to open
that judgment, the plaintiff filed an application and exe-
cution for ejectment, using form JD-CV-30, which refer-
ences General Statutes § 49-22,5 and the defendant filed
an objection thereto. The parties, with the approval of
the Superior Court, requested that we undertake to
answer two reserved questions. We conclude that we
have jurisdiction to do so.
‘‘As did the common law, § 49-22 permits a court, in
its discretion and if the mortgagee is so entitled, to
issue an execution of a judgment of ejectment in favor
of the mortgagee after a successful action to foreclose
the mortgage, as long as the person in possession is a
party to the mortgage action. . . . Because § 49-22
requires the trial court to determine whether the mort-
gagee is entitled both to foreclosure and to possession
before issuing an execution of a judgment of ejectment,
it expressly contemplates that there may exist circum-
stances in which a mortgagee is entitled to foreclosure,
but is not entitled to possession. Indeed, courts have
recognized that, ‘in equity, title and possession of prem-
ises may not automatically be linked.’ ’’ (Emphasis omit-
ted; footnote omitted.) First Federal Bank, FSB v.
Whitney Development Corp., 237 Conn. 679, 690–91,
677 A.2d 1363 (1996) (reversing judgment granting exe-
cution of judgment of ejectment rendered against party
tenant in possession of mortgaged property following
judgment of strict foreclosure). Furthermore, this court
previously has held that a mortgagor can challenge on
appeal an execution of ejectment that he claims was
issued in violation of the appellate stay. See, e.g., Wells
Fargo Bank of Minnesota, N.A. v. Morgan, 98 Conn.
App. 72, 84–85, 909 A.2d 526 (2006). Similarly, a foreclo-
sure plaintiff would have the right to appeal from a
decision of the trial court denying its application for
the issuance of an execution of ejectment. Accordingly,
we conclude that this is a case in which an appeal could
have been filed had judgment been rendered.
Notwithstanding our jurisdiction to decide these
reserved questions, in accordance with the standards
articulated in Practice Book § 73-1, we also must deter-
mine whether we should entertain the questions. State
v. Wang, supra, 312 Conn. 229. ‘‘Section 73-1 (f) provides
that ‘[t]he court will not entertain a reservation for its
advice upon questions of law arising in any action unless
the question or questions presented are such as are, in
the opinion of the court, reasonably certain to enter
into the decision of the case, and it appears that their
present determination would be in the interest of sim-
plicity, directness and economy of judicial action.’ ’’ Id.
‘‘Neither our Supreme Court nor this court is bound to
entertain a reservation, and whether it will do so rests
in its discretion. . . . The extent to which we will
entertain a reservation also rests in the discretion of
this court.’’ (Citation omitted; internal quotation marks
omitted.) Capel v. Plymouth Rock Assurance Corp., 141
Conn. App. 699, 704, 62 A.3d 582 (2013). The reserved
questions meet the settled criteria under our rules of
practice because the questions are reasonably certain
to enter into the decision on the plaintiff’s application
for an execution of ejectment. Accordingly, we will
proceed to answer them.
Our analysis of the parties’ reserved questions
requires us to construe Practice Book § 61-11,6 particu-
larly subsection (a). ‘‘The interpretive construction of
the rules of practice is to be governed by the same
principles as those regulating statutory interpretation.
. . . The interpretation and application of a statute,
and thus a Practice Book provision, involves a question
of law over which our review is plenary. . . . In seek-
ing to determine [the] meaning [of a statute or a rule
of practice, we] . . . first . . . consider the text of the
statute [or rule] itself and its relationship to other stat-
utes [or rules]. . . . 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 . . . shall
not be considered. . . . When [the provision] is not
plain and unambiguous, we also look for interpretive
guidance to the . . . history and circumstances sur-
rounding its enactment, to the . . . policy it was
designed to implement, and to its relationship to
existing [provisions] and common law principles gov-
erning the same general subject matter . . . . We rec-
ognize that terms [used] are to be assigned their
ordinary meaning, unless context dictates otherwise.
. . . Put differently, we follow the clear meaning of
unambiguous rules, because [a]lthough we are directed
to interpret liberally the rules of practice, that liberal
construction applies only to situations in which a strict
adherence to them [will] work surprise or injustice.’’
(Citations omitted; internal quotation marks omitted.)
Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586,
594–95, A.3d (2018).
The plaintiff argues that Practice Book § 61-11 is plain
and unambiguous. As to subsection (a), the plaintiff
argues that the second sentence of that subsection com-
plements the first sentence, requiring, under our well
established principles of statutory construction, that
both sentences be read together to secure the proper
meaning and intent of the rule. According to the plain-
tiff, when read together, the first two sentences of § 61-
11 (a) ‘‘stay the enforcement of a final judgment . . .
to permit aggrieved parties the opportunity to appeal
up until the time for exercising that right expires, and
then extend . . . such a stay until the final determina-
tion of the cause if an appeal is [timely] filed. . . .
[N]othing in the text creates a new stay [after] the
former stay terminates and the appellant . . . [decides
to file a late appeal] after the deadline.’’ (Emphasis
altered.) The plaintiff further argues that, under § 61-
11 (a), ‘‘any automatic stay of execution ends when the
appeal period expires . . . . [N]o new automatic stay
arises for a late filed appeal.’’
The defendant also argues that Practice Book § 61-
11 is plain and unambiguous. His reading of the rule,
however, differs from that of the plaintiff. The defen-
dant contends, contrary to the plaintiff, that the second
sentence of subsection (a) should be read indepen-
dently from the first sentence, and that it means exactly
what it says: ‘‘If an appeal is filed, such proceedings
shall be stayed until the final determination of the
cause.’’ The defendant argues that there is nothing in
that sentence that says the appeal must be timely filed
in order for a stay to be initiated. The defendant further
contends that other parts of § 61-11, particularly subsec-
tions (b) and (c), ‘‘explicitly list the types of matters
for which no automatic stay is permitted under . . .
[§] 61-11 (a).’’ He argues: ‘‘An appeal filed outside the
[twenty] day appeal period is not included on this list
of matters where no automatic appellate stay is avail-
able.’’ He contends, therefore, that the fact that the rule
does not mention a late appeal, supports his position
that, as § 61-11 (a) clearly states: ‘‘If an appeal is filed,
such proceedings shall be stayed until the final determi-
nation of the cause.’’ The defendant, citing to Stratford
v. LeBlanc, 175 Conn. App. 362, 167 A.3d 1015 (2017),
and TD Banknorth, N.A. v. White Water Mountain
Resorts of Connecticut, Inc., 133 Conn. App. 536, 37
A.3d 766 (2012), also contends that our appellate case
law supports his argument. He argues that, in these
foreclosure cases, despite acknowledging that the
appeals were late, we remanded White Water Mountain
Resorts of Connecticut, Inc., to the trial court with
direction to reset the law days, and we remanded
LeBlanc to the trial court with direction to set a new
sale date.
Although the parties’ agree that Practice Book § 61-11
is plain and unambiguous, they each advance a different
interpretation of that rule. On the basis of our own
consideration of the language of § 61-11 and its relation-
ship to other rules, particularly Practice Book § 61-127;
see General Statutes § 1-2z (‘‘[t]he meaning of a statute
shall, in the first instance, be ascertained from the text
of the statute itself and its relationship to other stat-
utes’’); although we agree that Practice Book § 61-11 is
plain and unambiguous, we conclude that the plaintiff’s
interpretation of the rule is accurate. See Honulik v.
Greenwich, 293 Conn. 698, 710–11, 980 A.2d 880 (2009)
(‘‘[t]he mere fact that the parties advance different inter-
pretations of the language in question does not necessi-
tate a conclusion that the language is ambiguous’’
[internal quotation marks omitted]). Specifically, we
conclude that, pursuant to Practice Book § 61-11, unless
otherwise provided by statute or other law, the filing
of a late appeal does not revive the automatic stay of
execution in a noncriminal case. Accordingly, we also
conclude that the defendant’s late appeal from the
denial of his second motion to open the judgment of
strict foreclosure did not revive the automatic stay to
toll the running of the law day.
I
We address the first reserved question, ‘‘[except
where otherwise provided by statute or other law,]
[d]oes the filing of an appeal ‘after the time to file an
appeal has expired’ . . . automatically stay the trial
court proceedings in a noncriminal case pursuant to
Practice Book § 61-11 until the final determination of
the cause,’’ and we answer that question in the negative.
In construing the meaning of Practice Book § 61-11,
in accordance with § 1-2z, we first turn to the language
of the rule. Subsection (a) provides in relevant part:
‘‘Except where otherwise provided by statute or other
law, proceedings to enforce or carry out the judgment
or order shall be automatically stayed until the time to
file an appeal has expired. If an appeal is filed, such
proceedings shall be stayed until the final determination
of the cause. . . .’’ Subsection (b) provides in relevant
part: ‘‘Under this section, there shall be no automatic
stay in actions concerning attorneys . . . juvenile mat-
ters . . . or in any administrative appeal except as
otherwise provided in this subsection.’’ Subsection (c)
provides in relevant part: ‘‘Unless otherwise ordered,
no automatic stay shall apply to orders of relief from
physical abuse . . . to orders for exclusive possession
of a residence . . . to orders of periodic alimony, sup-
port, custody or visitation in family matters brought
. . . or to any decision of the superior court in an
appeal of a final determination of a support order by
a family support magistrate . . . .’’ Subsection (d) pro-
vides in relevant part: ‘‘In all cases not governed by
subsection (c), termination of a stay may be sought
in accordance with subsection (e) of this rule. . . .’’
Subsection (e) provides in relevant part: ‘‘A motion to
terminate a stay of execution filed before judgment is
entered shall be filed with the trial court . . . . If such
a motion is filed after judgment but before an appeal
is filed, the motion shall be filed with the clerk of the
trial court . . . . After an appeal is filed, such a motion
shall be filed with the appellate clerk and shall be for-
warded by the appellate clerk to the trial judge for a
decision. . . .’’ Finally, subsection (f) provides in rele-
vant part: ‘‘Requests for a stay pending appeal where
there is no automatic stay shall be governed by Section
61-12. . . .’’
The text of Practice Book § 61-11 (a) dictates that,
unless otherwise provided by statute or other law, in
noncriminal cases, an automatic stay is in place ‘‘until
the time to file an appeal has expired.’’ (Emphasis
added.) Clearly then, the automatic stay expires when
the applicable appeal period expires. The second sen-
tence of the rule then provides that ‘‘[i]f an appeal is
filed, such proceedings shall be stayed until the final
determination of the cause.’’ We acknowledge that sub-
section (a) certainly could be more explicit in its second
sentence by setting forth the requirement that an appeal
be timely for the automatic stay to remain in place.
Nevertheless, examining § 61-11 as a whole, as we must,
it is clear to us that, unless otherwise established by
statute or other law, only a timely appeal stays the
proceedings ‘‘until the final determination of the
cause.’’
As this court recently explained: ‘‘It is axiomatic that,
with limited exceptions, an appellate stay of execution
arises from the time a judgment is rendered until the
time to file an appeal has expired. Practice Book § 61-
11 (a). If an appeal is filed, any appellate stay of execu-
tion in place during the pendency of the appeal period
continues until there is a final disposition of the appeal
or the stay is terminated. Practice Book § 61-11 (a)
and (e). If no appeal is filed, the stay automatically
terminates with the expiration of the appeal period.’’
(Emphasis added.) Sovereign Bank v. Licata, 178 Conn.
App. 82, 99, 172 A.3d 1263 (2017). ‘‘[When] no appeal
[is] filed from [a] judgment of strict foreclosure . . .
any initial appellate stay of execution that arose when
that judgment was rendered expire[s] after the appeal
period for that judgment ha[s] run . . . . [Neverthe-
less, a] party [may seek] a discretionary stay of execu-
tion with respect to the foreclosure judgment.8
Accordingly, [if] there [is] no appellate stay in effect
when the law days [begin] to run . . . absolute title to
the property transfer[s] to the plaintiff as a matter of
law after all law days expired.’’ (Footnote altered.) Id.,
100–101. ‘‘[T]he automatic tolling of the law days is
necessary in the context of filing an appeal because
otherwise defendants would be deprived of their rights
to file a timely appeal and to redeem.’’ (Emphasis
added.) Deutsche Bank National Trust Co. v. Pardo,
170 Conn. App. 642, 653 n.11, 155 A.3d 764, cert. denied,
325 Conn. 912, 159 A.3d 231 (2017).
The defendant argues that Practice Book ‘‘§ 61-11 (b)
and (c) explicitly list the types of matters for which no
automatic stay is permitted under [§] 61-11 (a). An
appeal filed outside the [twenty] day appeal period is
not included on this list of matters where no automatic
appellate stay is available. Practice Book [§] 61-11 (d)
and (e) provide the mechanism for terminating the auto-
matic stay that is otherwise available under Practice
Book § 61-11 (a), and [§] 61-11 (f) provides the mecha-
nism for obtaining a stay of proceedings when the mat-
ter is one in which no automatic stay is provided under
[§] 61-11 (b) and (c).’’ We disagree.
First, subsections (b) and (c) of Practice Book § 61-
11 list only the types of matters as to which there is
no automatic stay. They do not address the timing
requirement set forth in § 61-11 (a). If anything, the
language of § 61-11 (b) supports our interpretation of
§ 61-11 (a). Section 61-11 (b) provides that ‘‘any stay that
was in effect during the pendency of any administrative
appeal in the trial court shall continue until the filing
of an appeal or the expiration of the appeal period, or
any new appeal period, as provided in Section 63-1.’’
Thus, like in § 61-11 (a), once the appeal period expires,
so does the existing stay.
Practice Book § 61-11 (f), which is entitled ‘‘Motions
to request stay,’’ provides in relevant part: ‘‘Requests
for a stay pending appeal where there is no automatic
stay shall be governed by Section 61-12.’’ Nowhere in
subsection (f) does it provide that a request for a stay
can be made only in matters where there is no automatic
stay as provided under § 61-11 (b) and (c). Rather, sub-
section (f) directs a party to request a stay ‘‘where there
is no automatic stay’’ by using the procedure set forth
in § 61-12.
Practice Book § 61-12 provides in relevant part: ‘‘In
noncriminal matters in which the automatic stay provi-
sions of Section 61-11 are not applicable . . . any
motion for a stay of the judgment . . . shall be filed
in the trial court. . . . Such a motion may also be filed
before judgment and may be ruled upon at the time
judgment is rendered . . . . The motion shall be con-
sidered on an expedited basis . . . .’’ Clearly, taken
together, these rules also provide a means to request
a stay of execution in a noncriminal case when the
automatic stay has expired, i.e. there is no automatic
stay, and a late appeal is filed.
The defendant also argues that Practice Book § 61-
11 (g) and (h) ‘‘make no mention of the automatic stay
being unavailable for late filed appeals.’’ Although we
agree with the defendant’s statement, we disagree that
it supports his argument that, pursuant to subsection
(a), an automatic stay is created, or recreated, when a
late appeal is filed. Section 61-11 (g) addresses only the
issue of how many times a foreclosure defendant is
entitled to an automatic stay while appealing denials
of motions to open. It in no way modifies the timing
requirement of § 61-11 (a). Similarly, § 61-11 (h)
addresses only a last minute motion to open filed by a
foreclosure defendant to disrupt a scheduled foreclo-
sure sale. It does not expand a foreclosure defendant’s
rights to an automatic stay. To the contrary, it ‘‘stays’’
only the filing of a motion to approve the sale ‘‘until
the expiration of the appeal period following the denial
of the motion [to open] without an appeal having been
filed.’’ Practice Book § 61-11 (h). Consistent with our
interpretation of § 61-11 (a), this language provides the
defendant with relief only if he files a timely appeal.
Additionally, the defendant argues that the plaintiff’s
interpretation of Practice Book § 61-11 ‘‘would yield an
absurd and unworkable result’’ because it would permit
an execution on a judgment for millions of dollars and
the seizure of bank accounts despite the filing of an
appeal, albeit, a late appeal. He also argues that it would
permit title to pass in a foreclosure case, even after an
appeal, again, albeit, a late appeal, has been filed. The
final example given by the defendant in support of his
argument that the plaintiff’s interpretation ‘‘would yield
an absurd and unworkable result’’ is that, if Connecticut
still had a death penalty, we could be in a situation
where the plaintiff’s reading of § 61-11 ‘‘conceivably
[could result] in the state ending the life of someone
whose death penalty conviction is validly before this
court on appeal. . . . Without a stay in place for a
late filed appeal, appellees could execute on judgments
issued by the trial court at [its] leisure, while those very
same judgments remained in doubt on appeal.’’ Clearly,
the defendant is misguided in this final argument; § 61-
11 applies only in noncriminal matters.
As to the first two arguments, we also are not per-
suaded. Although the defendant is concerned that a
defendant in a civil action could be harmed if a late
appeal did not reinstate the automatic Practice Book
§ 61-11 stay, we conclude that there is nothing absurd
or unworkable about a system that allows a plaintiff
to enforce a judgment rendered in its favor when the
defendant has not properly exercised his right to chal-
lenge that judgment. Indeed, it seems more absurd to
construe the rule to allow a party who has sat on his
rights to use an untimely appeal to reinstate the expired
automatic stay and thereby thwart a plaintiff’s legally
proper efforts to collect or to proceed with a foreclosure
once a judgment has been rendered and the defendant
has failed to file a timely appeal. Furthermore, the
defendant who files a late appeal still has remedies
available to him to stop the execution of the judgment.
The defendant can request a discretionary stay under
Practice Book §§ 61-11 (f) and 61-12 in such instances,
or file a motion to open the judgment before the running
of the law days in a strict foreclosure, in accordance
with General Statutes § 49-15 and Practice Book §§ 61-
11 and 63-1.
Finally, the defendant points us to two foreclosure
cases from this court where, after considering the
defendants’ late filed appeals, we remanded the cases
to the trial court to either reset the law day or reset
the sale date. See Stratford v. LeBlanc, supra, 175 Conn.
App. 362; TD Banknorth, N.A. v. White Water Mountain
Resorts of Connecticut, Inc., supra, 133 Conn. App. 536.
We do not find either decision helpful to our analysis.
Although both appeals were filed late, the plaintiffs had
waived any objection to their late filing because they
had not filed motions to dismiss the late appeals pursu-
ant to Practice Book § 66-8. See Stratford v. LeBlanc,
supra, 365 n.3; TD Banknorth, N.A. v. White Water
Mountain Resorts of Connecticut, Inc., supra, 542–43.
Although we do recognize that this court remanded
those cases to the trial court for a resetting of the law
days or the resetting of the sale date, respectively, the
issue of whether the Practice Book § 61-11 automatic
stay had expired was not raised on appeal, and, there-
fore, this court did not consider it. Accordingly, we do
not find these cases helpful to our analysis. In fact, both
our Supreme Court and this court consistently have
described the right to an automatic stay as arising out
of a timely filed appeal. See, e.g., Connecticut National
Mortgage Co. v. Knudsen, 323 Conn. 684, 689, 105 A.3d
675 (2016) (‘‘the defendant’s filing of [an] appeal within
twenty days of [the] judgment continue[s] the stay ‘until
the final determination of [the appeal]’ ’’ [emphasis
added]); Farmers & Mechanics Savings Bank v. Sulli-
van, 216 Conn. 341, 347, 579 A.2d 1054 (1990) (holding
that ‘‘[t]he seasonable filing of a notice of appeal . . .
operates as a stay of further proceedings under a judg-
ment of foreclosure’’ [emphasis added; internal quota-
tion marks omitted]); Deutsche Bank National Trust
Co. v. Pardo, supra, 170 Conn. App. 653 n.11 (recogniz-
ing purpose of automatic stay in foreclosure proceed-
ings is protection of defendant’s right to ‘‘file a timely
appeal and to redeem’’ and that rule exists to ‘‘provide
that proceedings to enforce or carry out the judgment
or order shall be automatically stayed until the time
to file an appeal has expired’’ [emphasis added; internal
quotation marks omitted]); Brooklyn Savings Bank v.
Frimberger, 29 Conn. App. 628, 631, 617 A.2d 462 (1992)
(holding that a ‘‘stay remains in effect until the disposi-
tion of this appeal because the defendant’s appeal was
timely filed during the appeal period’’ [emphasis
added]).
Having considered the parties’ first reserved ques-
tion, ‘‘[except where otherwise provided by statute or
other law,] [d]oes the filing of an appeal ‘after the time
to file an appeal ha[d] expired’ . . . automatically stay
the trial court proceedings in a noncriminal case pursu-
ant to Practice Book § 61-11 until the final determina-
tion of the cause,’’ we answer that question in the
negative. (Emphasis added.) Specifically, we conclude
that, pursuant to Practice Book § 61-11, unless other-
wise provided by statute or other law, the filing of
a late appeal does not initiate an automatic stay of
execution in a noncriminal case.
II
We next address the second reserved question, ‘‘did
the filing of [the] defendant’s appeal in this instance
‘after the time to file an appeal has expired’ result in
an automatic stay of execution [pursuant to Practice
Book § 61-11] which tolled the running of his law day,’’
and we answer that question in the negative. (Empha-
sis added.)
The defendant in this case has not identified any
statute or law other than Practice Book § 61-11 (a) as
the basis for his argument that his late filed appeal
resulted in an automatic stay. Consequently, under the
facts stipulated to by the parties, it is clear that the
defendant’s late filed appeal did not trigger an automatic
stay. The defendant filed his second motion to open
the judgment of strict foreclosure, which the trial court
denied on May 9, 2016. Pursuant to Practice Book §§ 61-
11 and 63-1, that judgment was stayed for twenty days.
On June 27, 2016, clearly well beyond the twenty day
appeal period, the defendant filed an appeal from that
denial, which, upon motion by the plaintiff, this court
then dismissed, without a written opinion. The law day
in this case had been set for June 28, 2016. Although
there had been an automatic stay from the court’s May
9, 2016 denial of the defendant’s second motion to open,
that automatic stay expired twenty days later when the
defendant failed to file a timely appeal. No request for
a discretionary stay was made by the defendant.
Accordingly, the running of the law day was not tolled.
In summation, although ‘‘[t]he denial of a motion to
open a judgment of strict foreclosure is an appealable
final judgment itself and distinctly appealable from the
underlying judgment’’; Connecticut National Mortgage
Co. v. Knudsen, supra, 323 Conn. 687 n.8; if the appeal
from that judgment is not timely filed and no request
for a discretionary stay is made and granted, the law
day will not be tolled and the appeal will become moot
if the law day passes before the appeal is decided. See
Practice Book §§ 61-11 and 61-12.
Accordingly, we answer the second reserved question
in the negative. The defendant’s late appeal from the
denial of his second motion to open the judgment of
strict foreclosure did not revive the automatic stay,
under Practice Book § 61-11, to toll the running of the
law day.
The first reserved question is answered: ‘‘No.’’ The
second reserved question is answered: ‘‘No.’’
No costs will be taxed in this court to any party.
In this opinion the other judges concurred.
1
General Statutes § 52-235 provides: ‘‘(a) The Superior Court, or any judge
of the court, with the consent of all parties of record, may reserve questions
of law for the advice of the Supreme Court or Appellate Court in all cases
in which an appeal could lawfully have been taken to said court had judgment
been rendered therein.
‘‘(b) The court or judge making the reservation shall, in the judgment,
decree or decision made or rendered in such cases, conform to the advice
of the Supreme Court or the Appellate Court.’’
2
Practice Book § 73-1 provides: ‘‘(a) Counsel may jointly file with the
superior court a request to reserve questions of law for consideration by
the supreme court or appellate court. A reservation request shall set forth: (1)
a stipulation of the essential undisputed facts and a clear and full statement
of the question or questions upon which advice is desired; (2) a statement
of reasons why the resolution of the question by the appellate court having
jurisdiction would serve the interest of simplicity, directness and judicial
economy; and (3) whether the answers to the questions will determine, or
are reasonably certain to enter into the final determination of the case. All
questions presented for advice shall be specific and shall be phrased so as
to require a Yes or No answer.
‘‘(b) Reservation requests may be brought only in those cases in which
an appeal could have been filed directly to the supreme court, or to the
appellate court, respectively, had judgment been rendered. Reservations in
cases where the proper court for the appeal cannot be determined prior to
judgment shall be filed directly to the supreme court.’’
3
We have reframed the first question by adding the bracketed text and
replacing the word ‘‘ever’’ with an ellipses because, as originally proposed,
it was too broad. See Gianetti v. Norwalk Hospital, 211 Conn. 51, 57, 557
A.2d 1249 (1989) (reframing questions in reservation that parties had framed
too broadly).
4
The plaintiff, Deutsch Bank National Trust Company, as trustee for
Freemont Home Loan Trust Series 2006-3, Asset-Backed Certificates, Series
2006-3, commenced this action against the defendants, Robert Fraboni and
Louise Fraboni. Louise Fraboni has not participated in this reservation and,
therefore, our references to the defendant are to Robert Fraboni.
5
General Statutes § 49-22 provides in relevant part: ‘‘(a) In any action
brought for the foreclosure of a mortgage or lien upon land, or for any
equitable relief in relation to land, the plaintiff may, in his complaint, demand
possession of the land, and the court may, if it renders judgment in his favor
and finds that he is entitled to the possession of the land, issue execution
of ejectment, commanding the officer to eject the person or persons in
possession of the land no fewer than five business days after the date of
service of such execution and to put in possession thereof the plaintiff or
the party to the foreclosure entitled to the possession by the provisions of
the decree of said court, provided no execution shall issue against any
person in possession who is not a party to the action except a transferee
or lienor who is bound by the judgment by virtue of a lis pendens. The
officer shall eject the person or persons in possession and may remove such
person’s possessions and personal effects and deliver such possessions and
effects to the place of storage designated by the chief executive officer of
the town for such purposes. . . .’’
6
Practice Book § 61-11 provides: ‘‘(a) Automatic stay of execution
‘‘Except where otherwise provided by statute or other law, proceedings
to enforce or carry out the judgment or order shall be automatically stayed
until the time to file an appeal has expired. If an appeal is filed, such
proceedings shall be stayed until the final determination of the cause. If the
case goes to judgment on appeal, any stay thereafter shall be in accordance
with Section 71-6 (motions for reconsideration), Section 84-3 (petitions for
certification by the Connecticut supreme court), and Section 71-7 (petitions
for certiorari by the United States supreme court).
‘‘(b) Matters in which no automatic stay is available under this rule
‘‘Under this section, there shall be no automatic stay in actions concerning
attorneys pursuant to chapter 2 of these rules, in juvenile matters brought
pursuant to chapters 26 through 35a, or in any administrative appeal except
as otherwise provided in this subsection.
‘‘Unless a court shall otherwise order, any stay that was in effect during
the pendency of any administrative appeal in the trial court shall continue
until the filing of an appeal or the expiration of the appeal period, or any
new appeal period, as provided in Section 63-1. If an appeal is filed, any
further stay shall be sought pursuant to Section 61-12.
‘‘For purposes of this rule, ‘administrative appeal’ means an appeal filed
from a final judgment of the trial court or the compensation review board
rendered in an appeal from a decision of any officer, board, commission,
or agency of the state or of any political subdivision thereof. In addition
to appeals filed pursuant to the Uniform Administrative Procedure Act,
‘administrative appeal’ includes, among other matters, zoning appeals,
teacher tenure appeals, tax appeals and unemployment compensation
appeals.
‘‘(c) Stays in Family Matters and Appeals from Decisions of the Superior
Court in Family Support Magistrate Matters
‘‘Unless otherwise ordered, no automatic stay shall apply to orders of
relief from physical abuse pursuant to General Statutes § 46b-15, to orders
for exclusive possession of a residence pursuant to General Statutes §§ 46b-
81 or 46b-83 or to orders of periodic alimony, support, custody or visitation
in family matters brought pursuant to chapter 25, or to any decision of the
superior court in an appeal of a final determination of a support order by
a family support magistrate brought pursuant to chapter 25a, or to any later
modification of such orders. The automatic orders set forth in Section 25-
5 (b) (1), (2), (3), (5) and (7) shall remain in effect during any appeal period
and, if an appeal is filed, until the final determination of the cause unless
terminated, modified or amended further by order of a judicial authority
upon motion of either party.
‘‘Any party may file a motion to terminate or impose a stay in matters
covered by this subsection, either before or after judgment is rendered,
based upon the existence or expectation of an appeal. Such a motion shall
be filed in accordance with the procedures in subsection (e) of this rule or
Section 61-12. The judge hearing such motion may terminate or impose a
stay of any order, pending appeal, as appropriate, after considering (1) the
needs and interests of the parties, their children and any other persons
affected by such order; (2) the potential prejudice that may be caused to
the parties, their children and any other persons affected, if a stay is entered,
not entered or is terminated; (3) if the appeal is from a judgment of dissolu-
tion, the need to preserve, pending appeal, the mosaic of orders established
in the judgment; (4) the need to preserve the rights of the party taking the
appeal to obtain effective relief if the appeal is successful; (5) the effect, if
any, of the automatic orders under Section 25-5 on any of the foregoing
considerations; and (6) any other factors affecting the equities of the parties.
‘‘The judge who entered the order in a family matter from which an appeal
lies may terminate any stay in that matter upon motion of a party as provided
in this subsection or sua sponte, after considering the factors set forth in
this subsection or if the judge is of the opinion that an extension of time
to appeal is sought or the appeal is filed only for delay. Whether acting on
a motion of a party or sua sponte, the judge shall hold a hearing prior to
terminating the stay.
‘‘(d) Termination of stay
‘‘In all cases not governed by subsection (c), termination of a stay may
be sought in accordance with subsection (e) of this rule. If the judge who
tried the case is of the opinion that (1) an extension to appeal is sought,
or the appeal is filed, only for delay or (2) the due administration of justice
so requires, the judge may at any time, upon motion or sua sponte, order
that the stay be terminated. Whether acting on a motion of a party or sua
sponte, the judge shall hold a hearing prior to terminating the stay.
‘‘(e) Motions to terminate stay
‘‘A motion to terminate a stay of execution filed before judgment is entered
shall be filed with the trial court, and the judge who tried or presided over
the matter may rule upon the motion when judgment is entered. If such a
motion is filed after judgment but before an appeal is filed, the motion shall
be filed with the clerk of the trial court and may be ruled upon by the trial
judge thereafter. After an appeal is filed, such a motion shall be filed with
the appellate clerk and shall be forwarded by the appellate clerk to the trial
judge for a decision. If the judge who tried or presided over the case is
unavailable, the motion shall be forwarded to the clerk of the trial court in
which the case was tried, who shall assign the motion for a hearing and
decision to any judge of the superior court.
‘‘Upon hearing and consideration of the motion, the trial court shall file
with the clerk of the trial court its written or oral memorandum of decision
that shall include the factual and legal basis therefor. If oral, the decision
shall be transcribed by the court reporter and signed by the trial court. If
an appeal has not been filed, the clerk shall enter the decision on the trial
court docket and shall send notice of the decision to counsel of record. If
an appeal has been filed, the clerk of the trial court shall enter the decision
on the trial court docket and send notice of the decision to the appellate
clerk, and the appellate clerk shall issue notice of the decision to all counsel
of record.
‘‘(f) Motions to request stay
‘‘Requests for a stay pending appeal where there is no automatic stay
shall be governed by Section 61-12.
‘‘(For stays of execution in criminal cases, see Section 61-13; for stays in
death penalty cases, see Section 61-15.)
‘‘(g) Strict Foreclosure—Motion Rendering Ineffective a Judgment of
Strict Foreclosure
‘‘In any action for foreclosure in which the owner of the equity has filed,
and the court has denied, at least two prior motions to open or other
similar motion, no automatic stay shall arise upon the court’s denial of any
subsequent contested motion by that party, unless the party certifies under
oath, in an affidavit accompanying the motion, that the motion was filed
for good cause arising after the court’s ruling on the party’s most recent
motion. Such affidavit shall recite the specific facts relied on in support of
the moving party’s claim of good cause. If, notwithstanding the submission
of such an affidavit of good cause, the plaintiff contends that there is no good
cause to stay the court’s judgment of strict foreclosure pending resolution
of the appeal, the plaintiff may seek termination of the automatic stay by
filing a motion requesting such relief accompanied by an affidavit stating
the basis for the plaintiff’s claim. In the event such a motion to terminate
stay is filed, it shall be set down for argument and the taking of evidence,
if necessary, on the second short calendar next following the filing of the
motion. There shall be no automatic appellate stay in the event that the
court grants the motion to terminate the stay and, if necessary, sets new
law dates. There shall be no automatic stay pending a motion for review
of an order terminating a stay under this subsection.
‘‘(h) Foreclosure by Sale—Motion Rendering Ineffective a Judgment of
Foreclosure by Sale
‘‘In any action for foreclosure in which the owner of the equity has filed
a motion to open or other similar motion, which motion was denied fewer
than twenty days prior to the scheduled auction date, the auction shall
proceed as scheduled notwithstanding the court’s denial of the motion, but
no motion for approval of the sale shall be filed until the expiration of the
appeal period following the denial of the motion without an appeal having
been filed. The trial court shall not vacate the automatic stay following its
denial of the motion during such appeal period.’’
7
Practice Book § 61-12 provides in relevant part: ‘‘In noncriminal matters
in which the automatic stay provisions of Section 61-11 are not applicable
and in which there are no statutory stay provisions, any motion for a stay
of the judgment or order of the superior court pending appeal shall be filed
in the trial court. If the judge who tried the case is unavailable, the motion
may be decided by any judge of the superior court. Such a motion may also
be filed before judgment and may be ruled upon at the time judgment is
rendered unless the court concludes that a further hearing or consideration
of such motion is necessary. A temporary stay may be ordered sua sponte
or on written or oral motion, ex parte or otherwise, pending the filing or
consideration of a motion for stay pending appeal. The motion shall be
considered on an expedited basis and the granting of a stay of an order
for the payment of money may be conditional on the posting of suitable
security. . . .’’
8
Certainly, although no automatic stay may arise, any party may request
the imposition of a discretionary stay pending appeal in accordance with
Practice Book §§ 61-11 (f) and 61-12.