Lending Home Funding Corp. v. REI Holdings, LLC

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LENDING HOME FUNDING CORPORATION
v. REI HOLDINGS, LLC, ET AL.
(AC 44564)
Elgo, Cradle and Suarez, Js.
Syllabus
The defendant T Co. appealed to this court from the judgment of the trial
court determining that it lacked subject matter jurisdiction to consider
T Co.’s motion to reargue or to reconsider the trial court’s prior denial
of T Co.’s motion to open a judgment of strict foreclosure. The defendant
R Co. had defaulted on a promissory note and mortgage it executed in
favor of the plaintiff concerning a parcel of real property. The trial court
rendered judgment of strict foreclosure in favor of the plaintiff and set
the law day to run on May 20, 2019. R Co. did not file a timely appeal
from the judgment but, on May 15, 2019, filed a motion to open and
vacate the judgment. The court denied R Co.’s motion to open and set
a new law day for June 24, 2019. On June 10, 2019, pursuant to the
applicable rule of practice (§ 11-11) and within the twenty day appellate
stay period, R Co. filed a motion to reargue or to reconsider the court’s
denial of its motion to open. The court denied the motion to reargue
on July 3, 2019, and notice of the court’s ruling was sent to the parties
on July 5, 2019. The plaintiff thereafter filed a certificate of foreclosure
on the land records and quitclaimed the property to another entity. On
December 7, 2020, pursuant to statute (§ 49-15), T Co. filed a motion
to open and vacate the foreclosure judgment. T Co. claimed that title
to the property had never passed to the plaintiff because the June 24,
2019 law day fell within the twenty day appellate stay period and the
parties did not receive notice of the trial court’s denial of R Co.’s motion
to reargue until July 5, 2019. The trial court concluded that T Co.’s
motion to open was moot because the filing of R Co.’s motion to reargue
did not stay the June 24, 2019 law day and, thus, absolute title had
vested in the plaintiff on the passing of the June 24, 2019 law day. Held
that the trial court erred in determining that it was without subject matter
jurisdiction to hear T Co.’s motion to open and vacate the foreclosure
judgment: under the applicable rule of practice (§ 63-1 (b)), R Co.’s
timely filing of its motion to reargue the court’s denial of R Co.’s motion
to open and vacate the foreclosure judgment triggered the automatic
stay provision in the applicable rule of practice (§ 61-11 (a)) until the
parties received notice of the court’s ruling on R Co.’s motion to reargue
on July 5, 2019, and, because the June 24, 2019 law day fell within the
extended appellate stay period, the June 24, 2019 law day had no legal
effect and could not vest absolute title in the plaintiff; accordingly, the
trial court retained jurisdiction to decide T Co.’s motion to open and
vacate the foreclosure judgment.
Submitted on briefs December 8, 2021—officially released August 30, 2022
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the court, Dubay, J., rendered judg-
ment of strict foreclosure; thereafter, the court, Sheri-
dan, J., denied the named defendant’s motion to open
and vacate the judgment; subsequently, the court,
Dubay, J., denied the named defendant’s motion to
reargue or to reconsider the denial of its motion to
open and vacate the judgment; thereafter, the court, M.
Taylor, J., denied the motion filed by the defendant
Traditions Oil Group, LLC, to open and vacate the judg-
ment; subsequently, the court, M. Taylor, J., denied the
motion filed by the defendant Traditions Oil Group,
LLC, to reargue or to reconsider the denial of its motion
to open and vacate the judgment, and the defendant
Traditions Oil Group, LLC, appealed to this court.
Reversed; further proceedings.
Elio Morgan filed a brief for the appellant (defendant
Traditions Oil Group, LLC).
Opinion
CRADLE, J. The defendant Traditions Oil Group,
LLC,1 appeals from the judgment of the trial court deny-
ing its motion to reargue/reconsider the court’s denial
of its motion to open the judgment of strict foreclosure
rendered in favor of the plaintiff, Lending Home Fund-
ing Corporation. On appeal, the defendant claims that
the court incorrectly determined that it lacked subject
matter jurisdiction to open the judgment of strict fore-
closure on the ground that title already had vested in
the plaintiff, thereby rendering the defendant’s motion
to open moot. We agree with the defendant and, accord-
ingly, reverse the judgment of the trial court and remand
the matter for further proceedings.2
The following facts and procedural history are rele-
vant to our resolution of this appeal. On August 11,
2016, the defendant REI Holdings, LLC (REI), executed
a promissory note in favor of the plaintiff for the princi-
pal sum of $247,500, secured by a mortgage on a parcel
of real property located at 88 Dawn Drive in South
Windsor (property). The defendant Wayne Francis also
executed a commercial guaranty in which he personally
guaranteed the loan. The defendant, REI, and Francis
subsequently defaulted on the note, and the plaintiff
commenced the underlying foreclosure action on April
27, 2018.
On October 23, 2018, the plaintiff filed a motion for
default against the defendant for failure to disclose a
defense, which the court, Dubay, J., granted. On Janu-
ary 28, 2019, the court rendered judgment of strict fore-
closure in favor of the plaintiff and set the law day to
run on May 20, 2019. REI subsequently filed a motion
to open and vacate the judgment of strict foreclosure
(first motion to open) on May 15, 2019, claiming, inter
alia, that the appraised value of the property, as found
by the court, was too low. On May 20, 2019, the court,
Sheridan, J., denied the first motion to open and
assigned a new law day for June 24, 2019.
On June 10, 2019, pursuant to Practice Book § 11-
11,3 REI filed a motion to reargue/reconsider the court’s
denial of the first motion to open (first motion to rear-
gue/reconsider), again contending that the appraised
value of the property was incorrect. The court, Dubay,
J., denied the first motion to reargue/reconsider on July
3, 2019, and notice of the court’s ruling was sent to the
parties on July 5, 2019.4 On July 17, 2019, the plaintiff
filed a certificate of foreclosure on the South Windsor
land records. The plaintiff subsequently executed a quit-
claim deed transferring the property to CFAI Special
Assets LLC, which was recorded on the South Windsor
land records.
On December 7, 2020, the defendant filed a motion
to open and vacate the judgment of strict foreclosure
(second motion to open) pursuant to General Statutes
§ 49-15.5 In its memorandum of law in support of the
second motion to open, the defendant argued that the
court should open the judgment on the ground that title
to the property never effectively passed to the plaintiff.
Citing Practice Book § 63-1,6 as well as our Supreme
Court’s decision in Farmers & Mechanics Savings
Bank v. Sullivan, 216 Conn. 341, 579 A.2d 1054 (1990),
the defendant claimed, inter alia, that REI’s filing of the
first motion to reargue/reconsider within the twenty
day appellate stay period following the court’s denial
of the first motion to open extended the appellate stay
until the parties received notice of the court’s ruling
on that motion on July 5, 2019. Because the June 24,
2019 law day fell within the alleged appellate stay
period, the defendant argued, the law day had no legal
effect and, consequently, title could not have passed to
the plaintiff. Accordingly, the defendant claimed that
the court’s failure to ‘‘sua sponte reassign a legally effec-
tive law day’’ and the plaintiff’s failure to ‘‘move the
court to set a new law day outside the appeal period
prior to its attempt to enforce the judgment’’ constituted
good cause to open the judgment.
On February 16, 2021, the court, M. Taylor, J., denied
the defendant’s motion to open on the ground that the
court was without subject matter jurisdiction to hear
the motion.7 Specifically, the court determined that our
Supreme Court in Sullivan had ‘‘relied upon the anti-
quated language of Practice Book [1978–97] § 4009,
which stayed an appeal period until the issuance of
notice of the decision upon the motion or the expiration
of the time within which a remittitur is ordered filed.
. . . This section of the Practice Book regarding the
time for an appeal has been amended and is now codi-
fied in Practice Book § 63-1, which no longer provides
for a continuance of a stay, awaiting a decision on an
intervening motion.’’ (Internal quotation marks omit-
ted.) Accordingly, the court concluded that REI’s filing
of the first motion to reargue/reconsider did not stay
the June 24, 2019 law day until that motion was decided
and that absolute title vested in the plaintiff upon the
passing of the law day, thereby rendering the defen-
dant’s motion moot. The defendant subsequently filed
a motion to reargue/reconsider (second motion to rear-
gue/reconsider), again contending that the law day fell
within the appellate stay period and, therefore, title
never effectively passed to the plaintiff.8 The court
denied the second motion to reargue/reconsider on Feb-
ruary 16, 2021. This appeal followed.9
The dispositive issue on appeal is whether the court
improperly concluded that it lacked subject matter
jurisdiction to hear the second motion to open and
vacate the judgment of strict foreclosure because abso-
lute title had vested in the plaintiff following the June 24,
2019 law day. Specifically, we must determine whether
REI’s filing of the first motion to reargue/reconsider
the court’s denial of the first motion to open tolled the
automatic stay, pursuant to Practice Book § 61-11 (a),10
until that motion was decided. We agree with the defen-
dant that REI’s filing of the first motion to reargue,
pursuant to Practice Book §§ 11-11 and 63-1,11 extended
the appellate stay period until July 5, 2019, when the
parties received notice of the court’s ruling on that
motion. See Practice Book 63-1 (b).12 Because the June
24, 2019 law day fell within the extended appellate stay
period, it had no legal effect and could not vest absolute
title in the plaintiff. Accordingly, the court improperly
determined that it did not have jurisdiction to hear the
defendant’s motion to open and vacate the judgment
of strict foreclosure.
We begin by setting forth the standard of review and
relevant legal principles that guide our resolution of
the defendant’s appeal. ‘‘Because the principal issue
on appeal concerns questions of law, namely, subject
matter jurisdiction and the scope of the appellate stay
provisions in the rules of practice, our review is ple-
nary.’’ Wells Fargo Bank of Minnesota, N.A. v. Morgan,
98 Conn. App. 72, 78, 909 A.2d 526 (2006); see also
Chamerda v. Opie, 185 Conn. App. 627, 637–38, 197
A.3d 982 (‘‘A determination regarding a trial court’s
subject matter jurisdiction is a question of law. When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.)), cert. denied, 330 Conn. 953,
197 A.3d 893 (2018); Zirinsky v. Zirinsky, 87 Conn.
App. 257, 269, 865 A.2d 488 (‘‘[w]e are required to inter-
pret the scope of [the] rules of practice; accordingly,
we are presented with a question of law over which
our review is plenary’’), cert. denied, 273 Conn. 916,
871 A.2d 372 (2005).
‘‘The opening of judgments of strict foreclosure is
governed by § 49-15, which provides in relevant part:
Any judgment foreclosing the title to real estate by strict
foreclosure may, at the discretion of the court rendering
the judgment, upon the written motion of any person
having an interest in the judgment and for cause shown,
be opened and modified . . . provided no such judg-
ment shall be opened after the title has become absolute
in any encumbrancer . . . .’’ (Emphasis in original;
internal quotation marks omitted.) Deutsche Bank
National Trust Co. v. Pardo, 170 Conn. App. 642, 651–
52, 155 A.3d 764, cert. denied, 325 Conn. 912, 159 A.3d
231 (2017).
‘‘In Connecticut, a mortgagee has legal title to the
mortgaged property and the mortgagor has equitable
title, also called the equity of redemption. . . . The
equity of redemption gives the mortgagor the right to
redeem the legal title previously conveyed by per-
forming whatever conditions are specified in the mort-
gage, the most important of which is usually the pay-
ment of money. . . . Under our law, an action for strict
foreclosure is brought by a mortgagee who, holding
legal title, seeks not to enforce a forfeiture but rather to
foreclose an equity of redemption unless the mortgagor
satisfies the debt on or before his law day. . . . Accord-
ingly, [if] a foreclosure decree has become absolute by
the passing of the law days, the outstanding rights of
redemption have been cut off and the title has become
unconditional in the plaintiff, with a consequent and
accompanying right to possession.’’ (Internal quotation
marks omitted.) Seminole Realty, LLC v. Sekretaev, 192
Conn. App. 405, 414–15, 218 A.3d 198, cert. denied, 334
Conn. 905, 220 A.3d 35 (2019). ‘‘Thus, once the law day
passes and title vests in the [plaintiff], no practical relief
is available [p]rovided that this vesting has occurred
pursuant to an authorized exercise of jurisdiction by the
trial court . . . .’’ (Internal quotation marks omitted.)
Deutsche Bank National Trust Co. v. Pardo, supra, 170
Conn. App. 652. In other words, ‘‘§ 49-15 (a) (1) . . .
generally prohibits mortgagors from obtaining practical
relief after the passage of the law days and, as a result,
[renders] . . . postvesting motions to open a judgment
. . . moot.’’ U.S. Bank National Assn. v. Rothermel,
339 Conn. 366, 375, 260 A.3d 1187 (2021).13
On the other hand, it is well established that ‘‘law
days that are set forth in a judgment of strict foreclosure
can have no legal effect if an appellate stay is in effect
because to give them legal effect would result in an
extinguishment of the right of redemption pending
appeal.’’ Sovereign Bank v. Licata, 178 Conn. App. 82,
91 n.11, 172 A.3d 1263 (2017); see also Continental
Capital Corp. v. Lazarte, 57 Conn. App. 271, 273–74,
749 A.2d 646 (2000) (‘‘Law days are ineffective while
the appeal period is pending. To conclude otherwise
would be tantamount to depriving a party of judicial
review and, therefore, of due process of law.’’).
In the context of strict foreclosure, our Supreme
Court in Farmers & Mechanics Savings Bank v. Sulli-
van, supra, 216 Conn. 341, addressed the issue of
whether a motion to open, filed pursuant to Practice
Book (1978–97) § 4009,14 the predecessor of Practice
Book § 63-1, operated to toll the automatic stay period
until that motion was decided. In so doing, the court
in Sullivan distinguished between motions to open that
are timely filed within the twenty day appellate period
following the court’s judgment of strict foreclosure and
those that are untimely filed. See id., 348–50. When a
motion is filed after the expiration of the twenty day
appellate stay period, the motion must be heard, and
not merely filed, prior to the vesting of title, for the
court to retain jurisdiction over the motion. Id., 349–50.
By contrast, when a motion is filed within the appellate
stay period, the filing of the motion extends the stay
period until that motion is decided, even when a law
day is scheduled to run before the court has an opportu-
nity to resolve the motion. Id., 346–47, 349–50; see also
Continental Capital Corp. v. Lazarte, supra, 57 Conn.
App. 273 (‘‘[l]aw days in a strict foreclosure cannot run
if a motion to open is filed during the appeal period
but is yet to be ruled on’’). Stated otherwise, the timely
filing of a motion to open, pursuant to Practice Book
§ 63-1, ‘‘activate[s] the automatic stay under [Practice
Book § 61-11]’’ until that motion is decided; Farmers &
Mechanics Savings Bank v. Sullivan, supra, 346; ren-
dering ‘‘any redemption . . . violative of the automatic
stay, and any title derived through such stated proceed-
ings . . . subject to defeasance.’’ (Internal quotation
marks omitted.) Id., 349. Accordingly, it is well settled
that, when a motion to open is timely filed within the
twenty day appeal period following the court’s judg-
ment of strict foreclosure, any law day scheduled before
the motion is decided has no effect, and the court retains
jurisdiction to decide the motion. See id., 346–47,
349–50; see also Continental Capital Corp. v. Lazarte,
supra, 273–74.
In the present case, although the matter before the
court involves a timely motion to reargue/reconsider
the trial court’s denial of a motion to open and vacate
the judgment of strict foreclosure, rather than a timely
filed motion to open following the court’s judgment of
strict foreclosure, we conclude that the rule set forth
in Farmers & Mechanics Savings Bank v. Sullivan,
supra, 216 Conn. 341, governs our disposition of this
appeal. Accordingly, for the reasons we will set forth,
REI’s timely filing of the motion to reargue/reconsider
within the appellate stay period operated to extend that
period until the parties received notice of the court’s
decision of that motion on July 5, 2019.
In determining whether REI’s filing of the first motion
to reargue/reconsider extended the appellate stay until
the parties received notice of the court’s denial of that
motion, we turn to the rules of practice that govern the
creation of new appeal periods under Practice Book
§ 63-1 and their relation to automatic stays of execution
under Practice Book § 63-11.
Practice Book § 63-1 (a) provides in relevant part
that, ‘‘[u]nless a different time period is provided by
statute, an appeal must be filed within twenty days of
the date notice of the judgment or decision is given.
. . . If a motion is filed within the appeal period that
might give rise to a new appeal period as provided in
subsection (c) of this rule, the appeal may be filed either
in the original appeal period, which continues to run,
or in the new appeal period. . . .’’ Our Supreme Court
previously has held that a trial court’s denial of a motion
to open is an appealable final judgment that gives rise
to a twenty day appeal period following the resolution
of that motion. See Connecticut National Mortgage Co.
v. Knudsen, 323 Conn. 684, 687 n.8, 150 A.3d 675 (2016)
(‘‘[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’’);
see also Practice Book §§ 61-11 and 63-1.
Practice Book § 63-1 (c) (1) governs the creation of
new appeal periods and provides in relevant part that,
‘‘[i]f a motion is filed within the appeal period that, if
granted, would render the judgment, decision or accep-
tance of the verdict ineffective, either a new twenty
day period or applicable statutory time period for filing
the appeal shall begin on the day that notice of the
ruling is given on the last such outstanding motion.
. . . Motions that, if granted, would render a judgment,
decision or acceptance of the verdict ineffective
include, but are not limited to, motions that seek: the
opening or setting aside of the judgment [and] . . .
reargument of the judgment or decision . . . .’’
(Emphasis added.) This court previously has deter-
mined that the timely filing of a motion to reargue the
denial of a motion to open gives rise to a new twenty
day appeal period to challenge the denial of the motion
to open for the purposes of § 63-1 (c) (1).15 See Gibbs
v. Spinner, 103 Conn. App. 502, 506 n.4, 930 A.2d 53(2007); see also Countrywide Home Loans Servicing,
L.P. v. Peterson, 171 Conn. App. 842, 845, 158 A.3d
405 (2017).
We find this court’s decision in Brooklyn Savings
Bank v. Frimberger, 29 Conn. App. 628, 617 A.2d 462(1992), to be instructive in resolving the present appeal.
In Frimberger, following the entry of a judgment of
strict foreclosure, the defendant filed a motion to
reopen the judgment and extend the law day. Id., 630.
The trial court denied that motion, and the defendant
appealed ‘‘well within the twenty day period from the
issuance of the notice of the trial court’s denial of the
motion.’’ Id. On appeal, this court concluded that the
defendant’s appeal was not moot. See id., 632. First,
this court determined that the trial court’s denial of the
defendant’s motion to open the judgment ‘‘resulted in
the entry of an appealable final judgment invoking the
automatic stay under [Practice Book (1978–97)]
§ 4046.’’16 Id., 631. This court then concluded that ‘‘[t]he
stay remain[ed] in effect until the disposition of [the]
appeal because the defendant’s appeal was timely filed
during the appeal period . . . .’’ (Emphasis added.) Id.
In the present case, REI did not file an appeal within
the twenty day appeal period following the court’s
denial of the first motion to open but, rather, filed the
first motion to reargue/reconsider. It is well established,
however, that ‘‘[a] motion filed within the appeal period
automatically stays the judgment if an appeal from the
judgment would do so.’’ W. Horton & K. Bartschi, Con-
necticut Practice Series: Rules of Appellate Procedure
(2020–2021 Ed.) § 61-11, p. 117, authors’ comments (cit-
ing Farmers & Mechanics Savings Bank v. Sullivan,
supra, 216 Conn. 349); see also Weinstein v. Weinstein,
275 Conn. 671, 699, 882 A.2d 53 (2005) (‘‘the filing of a
motion [pursuant to Practice Book § 63-1] that seeks
an alteration, rather than a clarification, of the judgment
suspends the appeal period’’); Young v. Young, 249
Conn. 482, 496, 733 A.2d 835 (1999) (interpreting Prac-
tice Book § 63-1 such that ‘‘the defendants’ motion to
reargue [pursuant to Practice Book § 11-11] suspended
the . . . appeal period . . . until the . . . denial of
that motion’’). We conclude, therefore, that there is no
meaningful distinction between REI’s timely filing of
the first motion to reargue the court’s denial of the first
motion to open in the present case, and the timely filing
of a motion to open the judgment of strict foreclosure
in Farmers & Mechanics Savings Bank v. Sullivan,
supra, 346–50. Accordingly, we conclude that the rule
set forth in Sullivan controls our disposition of the
present appeal.
Applying the foregoing rationale to the unique facts
of the present case, we conclude that the court erred
in determining that it was without subject matter juris-
diction to hear the defendant’s second motion to open.
The court’s denial of REI’s first motion to open was
‘‘an appealable final judgment . . . from which an
automatic twenty day [appellate] stay [arises].’’ Coun-
trywide Home Loans Servicing, L.P. v. Peterson, supra,
171 Conn. App. 845; see also Practice Book §§ 61-11 (a)
and 63-1 (a). In addition, REI’s filing of the first motion
to reargue was a motion that, if granted, could render
the court’s ruling on the first motion to open ineffective
under Practice Book § 63-1. See Young v. Young, supra,
249 Conn. 494–96; Atlantic St. Heritage Associates, LLC
v. Bologna, 204 Conn. App. 163, 170, 252 A.3d 881 (2021)
(holding that both motions to reargue and motions to
open were among motions that would ‘‘render . . .
judgment ineffective pursuant to Practice Book § 63-1
(c) (1)’’). It is undisputed that REI’s filing of the first
motion to reargue/reconsider on June 10, 2019, was
timely filed within the twenty day period following the
court’s denial of the first motion to open.17 As such,
REI’s timely filing of the motion to reargue triggered
the automatic stay provision, pursuant to Practice Book
§ 61-11 (a), until the parties received notice of the
court’s denial of the first motion to reargue on July
5, 2019.18 See Farmers & Mechanics Savings Bank v.
Sullivan, supra, 216 Conn. 346–50; see also Young v.
Young, supra, 494–96; Practice Book § 63-1 (b). There-
fore, the June 24, 2019 law day passed during the appel-
late stay period and could not have had the legal effect
of vesting absolute title in the plaintiff. See Sovereign
Bank v. Licata, supra, 178 Conn. 91 n.11; Continental
Capital Corp. v. Lazarte, supra, 57 Conn. App. 273–74.
Accordingly, the court’s determination that it did not
have jurisdiction to hear the merits of the defendant’s
second motion to open the judgment of strict foreclo-
sure was improper. ‘‘To hold otherwise would circum-
vent the automatic stay provisions established by our
rules of practice.’’ Wells Fargo Bank of Minnesota, N.A.
v. Morgan, supra, 98 Conn. App. 84.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.19
In this opinion the other judges concurred.
1
Although the plaintiff’s complaint initially named REI Holdings, LLC
(REI), and Wayne Francis as defendants, neither REI nor Francis appealed
from the judgment of the trial court. We will refer to REI and Francis by
name, whereas all references to the defendant are to Traditions Oil Group,
LLC, only.
2
The defendant also claims that the court abused its discretion in sum-
marily denying the defendant’s motion to reargue. Because we reverse the
trial court’s judgment on the basis of the defendant’s claim that the court
erred in concluding that it was without subject matter jurisdiction to hear
the defendant’s motion to open, we need not reach the merits of this claim.
See, e.g., Hendricks v. Haydu, 160 Conn. App. 103, 105 n.1, 124 A.3d 554(2015).
3
Practice Book § 11-11 provides: ‘‘Any motions which would, pursuant
to Section 63-1, delay the commencement of the appeal period, and any
motions which, pursuant to Section 63-1, would toll the appeal period and
cause it to begin again, shall be filed simultaneously insofar as such filing
is possible, and shall be considered by the judge who rendered the underlying
judgment or decision. The party filing any such motion shall set forth the
judgment or decision which is the subject of the motion, the name of the
judge who rendered it, the specific grounds upon which the party relies,
and shall indicate on the bottom of the first page of the motion that such
motion is a Section 11-11 motion. The foregoing applies to motions to reargue
decisions that are final judgments for purposes of appeal, but shall not apply
to motions under Sections 16-35, 17-2A and 11-12.’’
4
The court did not assign a new law day following its denial of the first
motion to reargue/reconsider.
5
General Statutes § 49-15 (a) (1) provides that ‘‘[a]ny judgment foreclosing
the title to real estate by strict foreclosure may, at the discretion of the
court rendering the judgment, upon the written motion of any person having
an interest in the judgment and for cause shown, be opened and modified,
notwithstanding the limitation imposed by section 52-212a, upon such terms
as to costs as the court deems reasonable, provided no such judgment shall
be opened after the title has become absolute in any encumbrancer except
as provided in subdivision (2) of this subsection.’’
6
Practice Book § 63-1 provides in relevant part: ‘‘(a) General Provisions
‘‘Unless a different time period is provided by statute, an appeal must be
filed within twenty days of the date notice of the judgment or decision is
given. The appeal period may be extended if permitted by Section 66-1 (a).
If circumstances give rise to a new appeal period as provided in subsection
(c) of this rule, such new period may be similarly extended as long as no
extension of the original appeal period was obtained. If a motion is filed
within the appeal period that might give rise to a new appeal period as
provided in subsection (c) of this rule, the appeal may be filed either in
the original appeal period, which continues to run, or in the new appeal
period. . . .
‘‘(c) New Appeal Period
‘‘(1) How New Appeal Period is Created
‘‘If a motion is filed within the appeal period that, if granted, would render
the judgment, decision or acceptance of the verdict ineffective, either a new
twenty day period or applicable statutory time period for filing the appeal
shall begin on the day that notice of the ruling is given on the last such
outstanding motion . . . . Motions that, if granted, would render a judg-
ment, decision or acceptance of the verdict ineffective include, but are not
limited to, motions that seek . . . reargument of the judgment or decision
. . . .’’ (Emphasis added.)
7
On January 28, 2021, the defendant filed a motion to correct a scrivener’s
error in the court’s order, which incorrectly identified the movant as REI,
rather than the defendant. The court vacated the initial order and issued a
corrected order on February 16, 2021.
8
To clarify the procedural posture in the present appeal, we note that
the first motions to open and to reargue/reconsider each challenged the
appraisal value set forth in the court’s judgment of strict foreclosure. The
second motions to open and to reargue/reconsider each contended that
REI’s filing of the first motion to reargue, which fell within the twenty day
appellate stay period following the court’s denial of the first motion to open,
operated to extend the appellate stay period until the parties received notice
of the court’s denial of the first motion to reargue on July 5, 2019.
9
On December 10, 2021, this court ordered, sua sponte, that the parties
file supplemental memoranda of law addressing the issue of whether REI’s
filing of the first motion to reargue/reconsider the trial court’s order denying
REI’s motion to open and vacate the judgment and setting a new law day
extended the automatic stay under Practice Book § 61-11 (a).
10
Practice Book § 61-11 (a) provides: ‘‘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).’’
11
Practice Book § 11-11 incorporates by reference ‘‘[a]ny motions which
would, pursuant to Section 63-1, delay the commencement of the appeal
period, and any motions which, pursuant to Section 63-1, would toll the
appeal period and cause it to begin again,’’ including, as stated in Practice
Book § 63-1 (c) (1), ‘‘motions that seek . . . reargument of the judgment
or decision . . . .’’
12
Practice Book § 63-1 (b) provides in relevant part that, ‘‘[i]f notice of
the judgment or decision is given in open court, the appeal period shall
begin on that day. If notice is given only by mail or by electronic delivery,
the appeal period shall begin on the day that notice was sent to counsel of
record by the clerk of the trial court. . . .’’
In the present case, the parties were informed of the court’s denial of the
first motion to open via court notice on July 5, 2019.
13
That general rule notwithstanding, we note ‘‘that trial courts possess
inherent powers that support certain limited forms of continuing equitable
authority . . . and that these powers can, in certain rare and exceptional
cases, be exercised in a manner consistent with after the passage of the
law days.’’ (Citation omitted.) U.S. Bank National Assn. v. Rothermel, supra,
339 Conn. 376–77. Specifically, ‘‘§ 49-15 does not deprive the trial court of
jurisdiction to open a judgment of foreclosure [after the passage of the law
days] to correct an inadvertent omission in the foreclosure complaint.’’
(Internal quotation marks omitted.) Id., 377. Likewise, a trial court possesses
an ‘‘inherent, continuing, and equitable’’ authority, even after the passage
of the law days, to open a judgment of strict foreclosure for the purpose
of enforcing its previous judgment. Id., 378. These limited exceptions, how-
ever, are not at issue in the present appeal.
14
Practice Book (1978–97) § 4009 provides in relevant part: ‘‘TIME TO
APPEAL.
‘‘The party appealing shall, within twenty days, except where a different
period is provided by statute, from the issuance of notice of the rendition
of the judgment or decision from which the appeal is taken file an appeal
in the manner prescribed by Sec. 4012; but if within the appeal period any
motion is filed which, if granted, would render the judgment or decision
ineffective, as, for example, a motion to open the judgment or to set aside
the verdict or for judgment notwithstanding the verdict, the period of time
for filing an appeal shall commence from the issuance of notice of the
decision upon the motion or the expiration of the time within which a
remittitur is ordered filed. . . .
‘‘The time for filing the appeal or for taking any of the steps necessary
to prosecute or defend the appeal, as hereinafter provided, may be extended
in accordance with the provisions of Sec. 4040.’’
In its order denying the defendant’s second motion to reopen the judgment
of strict foreclosure, the court concluded that ‘‘[t]he Sullivan court . . .
relied upon the antiquated language of Practice Book [1978–97] § 4009,
which stayed an appeal period until ‘the issuance of notice of the decision
upon the motion or the expiration of the time within which a remittitur is
ordered filed . . . .’ This section of the Practice Book regarding the time
for an appeal has been amended and is now codified in Practice Book § 63-
1, which no longer provides for a continuance of a stay, awaiting a decision
on an intervening motion.’’
Although the court was correct in noting that Practice Book (1978–97)
§ 4009 has been amended and is now codified as Practice Book § 63-1, we
conclude that the court erred in determining that motions filed pursuant to
Practice Book § 63-1 no longer trigger the automatic stay pursuant to Practice
Book § 61-11 (a). As an initial matter, we note that the rule was rewritten
‘‘primarily for clarity’’ and to ‘‘resolve certain ambiguities’’ rather than to
effect substantive changes in its operation. W. Horton & K. Bartschi, Connect-
icut Practice Series: Rules of Appellate Procedure (2020–2021 Ed.) § 63-1,
historical note, p. 145. Moreover, our courts repeatedly have reestablished
the principle that the timely filing of a motion to open pursuant to Practice
Book § 63-1 stays the execution of the judgment of strict foreclosure until
that motion is decided. See, e.g., Deutsche Bank National Trust Co. v.
Fraboni, 182 Conn. App. 811, 830, 191 A.3d 247 (2018); see also RAL Manage-
ment, Inc. v. Valley View Associates, 278 Conn. 672, 686, 899 A.2d 586 (2006).
15
We note that this court has drawn a distinction between the creation
of new appeal periods and the extension of preexisting appeal periods in
situations where a party files a motion to reargue a trial court’s denial of
a motion to open. Practice Book § 63-1 (c) (1) provides in relevant part that
‘‘[m]otions that do not give rise to a new appeal period include those that
seek . . . reargument of a motion listed in the previous paragraph [including
motions that seek the opening or setting aside of the judgment].’’
Despite the plain language of Practice Book § 63-1 (c) (1), this court in
Gibbs v. Spinner, 103 Conn. App. 502, 506 n.4, 930 A.2d 53 (2007), held that
the timely filing of a motion to reargue the denial of a motion to open the
judgment gives rise to a new twenty day appeal period to challenge the
denial of the motion to open. By contrast, the timely filing of such a motion
does not extend the appeal period to challenge the merits of the underlying
judgment. Id.; see also Opoku v. Grant, 63 Conn. App. 686, 693–94, 778 A.2d
981 (2001). Accordingly, REI’s filing of the first motion to reargue/reconsider
following the court’s denial of the first motion to open would not operate
to extend the twenty day appeal period following the court’s judgment of
strict foreclosure by which to challenge the merits of the judgment of strict
foreclosure.
We conclude, however, that the timely filing of the first motion to reargue/
reconsider extended the automatic stay period following the court’s denial
of the first motion to open, by which to challenge the court’s denial of the
motion to open, until the motion to reargue was decided. See Young v.
Young, 249 Conn. 482, 496, 733 A.2d 835 (1999); see also Brooklyn Savings
Bank v. Frimberger, 29 Conn. App. 628, 630–31, 617 A.2d 462 (1992). While
we are bound by this court’s holding in Gibbs, we also acknowledge that
either clarification of Practice Book § 63-1 (c) (1) or review by our Supreme
Court may be warranted.
16
Practice Book (1978–97) § 4046 provides in relevant part that, ‘‘[i]n all
actions, except where otherwise provided by statute or other law, proceed-
ings to enforce or carry out the judgment shall be automatically stayed until
the time to take an appeal has expired . . . .’’ Practice Book (1978–97)
§ 4046 has since been recodified as Practice Book § 61-11.
17
The twentieth day following the court’s denial of REI’s motion to open
was June 9, 2019, which fell on a Sunday. Because REI filed the motion to
reargue/reconsider on June 10, 2019, the next business day, it is considered
timely filed within the appeal period. See General Statutes § 51-347c.
18
For clarity, we note that Practice Book § 61-11 (g) is not applicable to
the present action. Section 61-11 (g) was enacted ‘‘to a put a stop to the
‘perpetual motion machine’ and accompanying appellate litigation generated
when a defendant files serial motions to open a judgment of strict foreclosure
and, each time a motion to open is denied, files a new appeal from the
judgment denying the motion to open.’’ (Footnote omitted.) Connecticut
National Mortgage Co. v. Knudsen, supra, 323 Conn. 687.
Practice Book § 61-11 (g) provides in relevant part that, ‘‘[i]n 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 . . . .’’
(Emphasis added.)
Because the first motion to reargue/reconsider the court’s denial of the
first motion to open was only the second ‘‘motion to open or other similar
motion’’ filed subsequent to the judgment of strict foreclosure, and because
the court did not deny the motion to reargue/reconsider until July 5, 2019,
Practice Book § 61-11 (g) does not apply. Accordingly, an appellate stay
was in place until the court’s denial of that motion on July 5, 2019. See
Farmers & Mechanics Savings Bank v. Sullivan, supra, 216 Conn. 346–50.
19
We reiterate that our decision is limited to the question of whether the
trial court had subject matter jurisdiction to consider the second motion to
open. We express no view on the merits of that motion, which is left to the
sound discretion of the trial court. In exercising its discretion, the court
may consider a number of factors, including the fact that the defendant
never appealed from the original judgment of strict foreclosure, the court’s
order denying the first motion to open, and/or the court’s order denying the
first motion to reargue/reconsider.