Bridgeport v. Grace Building, LLC

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CITY OF BRIDGEPORT v. GRACE BUILDING, LLC
(AC 38174)
Sheldon, Elgo and Eveleigh, Js.
Syllabus
The plaintiff city sought, by way of summary process, to regain possession
of certain premises that it had leased to the defendant for a term of
ninety-eight years. The trial court denied the defendant’s motion to
transfer the matter from the Housing Session to the regular docket of
the Superior Court. The defendant had claimed in the motion to transfer,
inter alia, that good defenses existed to the plaintiff’s action and that
it wanted to conduct discovery. The defendant further asserted that the
purpose of the lease agreement was to allow the defendant to purchase
the premises without assuming liability for ground contamination to the
property, and that certain of the more than $1 million that the defendant
had invested in remediation efforts would be credited toward its back
rent. Thereafter, the plaintiff filed an amended complaint in which it
revised certain misstatements in its allegations, and the defendant filed
an answer and special defenses in which it alleged, inter alia, that it
had paid rent in the form of agreed upon repairs, cleanup and improve-
ments to the property, and that ground contamination on the property
necessitated remediation. Prior to the trial date, the court granted a
motion to withdraw from representation that was filed by the defendant’s
counsel and admonished the defendant that it could be defaulted if it
appeared for trial without counsel. The defendant thereafter appeared
for trial without counsel, and the court rendered a judgment of default
for failure to appear. The court thereafter denied the defendant’s motion
to open the default judgment and subsequently issued an articulation
of its decision in which it stated, inter alia, that it had denied the
motion to open because of dilatory delays by the defendant and that
the defendant had not been prevented from obtaining counsel by reason
of mistake, accident or other reasonable cause. Held:
1. The plaintiff could not prevail on its claim that because the defendant
had been evicted from and no longer was in possession of the property,
the appeal was moot: although, generally, an appeal becomes moot
when, at the time of the appeal, an appellant no longer is in possession
of the premises, that rule does not apply when an appellant can demon-
strate that the judgment has potentially collateral consequences to the
defendant, including the impairment of a party’s ability to seek a writ of
restoration, and because the defendant sought restoration of its tenancy
rights under the lease agreement, an avenue of practical relief remained
viable in the form of a writ of restoration, which is available in summary
process actions to parties who have been wrongly dispossessed of leased
property, provided that the term of the lease agreement has not yet
expired; accordingly, given that the term of the parties’ lease agreement
was for ninety-eight years and, thus, has not expired, the appeal was
not moot.
2. The trial court abused its discretion in denying the defendant’s motion
to open the default judgment, as the defendant provided sufficient infor-
mation to satisfy the statutory (§ 52-212 [a]) standard for opening a
default judgment, which required a showing that a good defense existed
at the time that the default judgment was rendered and that the defense
was not raised by reason of mistake, accident or other reasonable cause:
the defendant asserted that good defenses existed to the plaintiff’s action
and the trial court did not conclude that the defendant failed to establish
the existence of a good defense at the time of the default judgment;
moreover, that court’s findings that the defendant had engaged in purely
dilatory delays and that no reasonable cause existed for the defendant’s
failure to appear for trial with counsel were clearly erroneous, as the
record indicated, inter alia, that a six month delay at the outset of this
litigation was occasioned by the plaintiff’s failure to promptly amend
its patently defective complaint, the defendant immediately sought to
procure new counsel after the trial court granted the motion of its
attorney to withdraw, new counsel did appear at the courthouse to try
to negotiate with the plaintiff and did not advise the defendant of his
unwillingness to file an appearance until the day before trial, the plain-
tiff’s counsel confirmed to the trial court that the defendant’s new coun-
sel had attempted to conduct negotiations with him before the court
rendered the default judgment, an affidavit filed by the defendant’s
president, which accompanied the motion to open, chronicled those
events, which were unrebutted at the hearing on the motion to open,
and the record indicated that the defendant had claimed from the onset
of the litigation that good defenses existed to the plaintiff’s action.
Argued January 16—officially released April 24, 2018
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of Fairfield, Housing Ses-
sion, where the defendant was defaulted for failure to
appear; thereafter, the court, Rodriguez, J., rendered
judgment of possession for the plaintiff, from which
the defendant appealed to this court; subsequently, the
court, Rodriguez, J., denied the defendant’s motion to
open the judgment, and the defendant filed an amended
appeal with this court; thereafter, the court, Rodriguez,
J., issued an articulation of its decision. Reversed; fur-
ther proceedings.
Gary A. Mastronardi, for the appellant (defendant).
Russell D. Liskov, associate city attorney, for the
appellee (plaintiff).
Opinion
ELGO, J. The defendant, Grace Building, LLC,1
appeals from the judgment of the trial court denying
its motion to open the default judgment rendered in
favor of the plaintiff, the city of Bridgeport. On appeal,
the defendant claims that the court abused its discretion
in so doing. We agree and, accordingly, reverse the
judgment of the trial court.
The plaintiff commenced this summary process
action against the defendant on October 22, 2014. In its
complaint, the plaintiff alleged that the parties entered
into an oral lease agreement in February, 2011, regard-
ing real property located at 560 North Washington Ave-
nue in Bridgeport (property) owned by the plaintiff.
The plaintiff alleged that the agreement was for the
term of one year and obligated the defendant to pay it
‘‘$70,000 in a lump sum and $20,000 in a lump sum in
August, 2012.’’ The complaint further alleged that the
defendant had failed to make those payments in accor-
dance with the oral agreement. On November 6, 2014,
the defendant filed an answer, in which it denied the
substance of the plaintiff’s allegations. More specifi-
cally, the defendant alleged that the parties had entered
into a written lease agreement on August 18, 2010, for
a term of ninety-eight years. The defendant further
claimed that the payment schedule alleged in the plain-
tiff’s complaint ‘‘does not conform to the terms of the
written lease agreement.’’ The defendant also raised
three special defenses, all of which pertained to remedi-
ation of the property.2 On November 20, 2014, the defen-
dant filed an amended answer and special defenses,
wherein it pleaded, in addition to the aforementioned
allegations, that ‘‘[d]eductions in rent have not been
credited contrary to prior agreement’’ of the parties.
On January 5, 2015, the defendant filed a motion to
transfer the matter from the Housing Session to the
regular docket of the Superior Court pursuant to Prac-
tice Book § 24-21, asserting that ‘‘good defenses exist
in this matter,’’ including estoppel, unconscionability,
and breach of the covenant of good faith and fair deal-
ing. That motion further stated that the defendant
‘‘wishes to utilize the discovery process. The defendant
wishes to be able to exercise [its] right to a trial by
jury. And the defendant wishes to preserve [its] right
to the appellate process, all of which may be had by
the granting of this motion.’’
While the motion to transfer was pending, the court
scheduled a trial for February 13, 2015. On January 29,
2015, the defendant filed a motion for a continuance
with the consent of the plaintiff due to ongoing discus-
sions between the parties about a possible resolution
to the dispute. That motion was granted, and a new
trial date was set for March 13, 2015. On February 11,
2015, the defendant filed a second motion for a continu-
ance with the consent of the plaintiff because the parties
were ‘‘negotiating a settlement.’’ That motion was
granted, and a new trial date was set for March 27,
2015. On March 10, 2015, the defendant filed a third
motion for a continuance with the consent of the plain-
tiff because the parties were ‘‘discussing resolution’’ of
their dispute. That motion was granted, and a new trial
date was set for May 1, 2015.
On April 30, 2015, the plaintiff filed an objection to
the defendant’s motion to transfer. In its objection, the
plaintiff argued that transfer was unnecessary because
‘‘the Housing Session is a full service branch of the
Superior Court and is completely and fully equipped
and competent to handle such a matter.’’
The court held a hearing on the defendant’s motion
to transfer on May 1, 2015. At that hearing, the defendant
argued that this case involved a lengthy ‘‘lease option
agreement [whose] purpose . . . was to . . . allow
[the defendant] to purchase the property while not
assuming liability for ground contamination to the prop-
erty . . . .’’ The defendant emphasized that ‘‘there are
a lot of complicated issues in which [the defendant had]
a lot of back and forth with the [plaintiff]. A lot of
problems concerning the property in which [the defen-
dant] relied on or understood that certain amounts of
[its] investment in the property would be credited
toward [its] back rent. [The defendant has] invested in
excess of a million dollars into the property. . . .
[G]iven the issues involved here, we feel this would be
more properly transferred to the regular civil docket.’’
In response, the plaintiff again argued that ‘‘this Housing
Session is capable of resolving all issues that we have
. . . .’’ Significantly, the plaintiff at that time stated that
‘‘if [the defendant] wants depositions, notice them, we’ll
be there. If [the defendant] wants discovery, file them,
we’ll answer the questions. . . . If [the defendant]
needs time to do certain things, I’ll give [it] the time
[it] needs. . . . If [it] wants to do depositions, I’ll give
[it] whatever time [it] needs. If [it] wants to file interrog-
atories . . . file them. We’ll answer them. Not a prob-
lem.’’ The court then denied the defendant’s motion to
transfer and the proceeding adjourned.
That afternoon, the plaintiff filed an amended com-
plaint in which it acknowledged the existence of a writ-
ten agreement, as first alleged by the defendant in its
original answer filed almost six months earlier. That
amended complaint alleged that the defendant, on
August 18, 2010, entered into a written lease agreement
(agreement) regarding the property. Appended to that
pleading was a copy of the agreement signed by both
parties. Pursuant thereto, the defendant agreed to pay
the sum of $300,000 in four installments in exchange
for a lease of ninety-eight years, as well as an option
to purchase. An initial payment of $20,000 was due ‘‘[a]t
the [c]losing’’; a second payment of $10,000 was due
two months after the date of the closing; $70,000 was
due six months after the date of closing; and $200,000
was due twelve months after the date of closing.3 The
complaint further alleged that although the defendant
‘‘uses and occupies the [property] as agreed in the
[agreement],’’ it had failed to make the payments speci-
fied therein.
On May 4, 2015, the defendant filed an answer to the
plaintiff’s amended complaint, in which it denied that
it had failed to make the required payments. Rather,
the defendant alleged that ‘‘[r]ent was paid in the form
of agreed upon repairs, cleanup, and/or improvements
to the property.’’ (Emphasis added.) The defendant at
that time also raised eight special defenses that primar-
ily concerned the defendant’s allegations of ‘‘ground
contamination’’ on the property that necessitated reme-
diation.4
The court thereafter scheduled a trial for May 15,
2015. On May 11, 2015, the defendant filed a motion for
a continuance with the consent of the plaintiff because
‘‘the parties have agreed to a sixty day continuance for
completion of discovery.’’ That motion was granted,
and a new trial date was set for June 19, 2015.
On June 15, 2015, the defendant filed a motion for a
continuance with the consent of the plaintiff. In that
motion, the defendant’s counsel, Attorney Robin H.
Lasky, indicated that the reason for the request was
that discovery was not complete. As Lasky stated: ‘‘My
client has been unavailable traveling out of state for
the last two weeks. I have not yet received a response
to my request for production which the [plaintiff’s]
attorney has asked me to anticipate receiving this week.
The plaintiff has agreed to a continuance until July 17,
2015, and I humbly request the court grant this motion
so that I may have sufficient time to review requested
[materials] and confer further with my client.’’5 The
court denied that request on June 15, 2015.
On June 17, 2015, Lasky filed a motion to withdraw
his appearance due to ‘‘a breakdown in communication’’
with his client and an ‘‘[i]rreconcilable disagreement as
to the best legal strategy . . . .’’ The court held a hear-
ing on June 19, 2015, at which it heard from Lasky
and Femi Olowosoyo, the owner and principal of the
defendant. At that time, Olowosoyo communicated his
displeasure with Lasky and requested a continuance of
eight weeks to enable him to secure new counsel. In
response, the plaintiff’s attorney stated that he ‘‘would
like the case to be set down for July 17. I think that’s
more than enough time for this gentleman to get a
lawyer. You can go out the door and knock a tree and
knock six lawyers out of the tree with a stick for a
case.’’ When the plaintiff’s counsel then remarked that
‘‘the case has been pending since October of 2014,’’
Olowosoyo stated: ‘‘I’ve never asked for any time to
find an attorney, Your Honor. This is the first time
I’m asking, and I’m hoping that the court will find it
reasonable enough to grant [the request] . . . .’’
The court granted a continuance, albeit one four
weeks less than Olowosoyo had requested. As it stated:
‘‘I’m going to grant the continuance request. I’m going
to grant the motion of [Lasky] to withdraw and give
you the opportunity to hire a new lawyer. But let me
be very clear about this . . . you need to have an attor-
ney because you can’t represent your [limited liability
company]. On July 17, [2015], which is . . . when this
case is scheduled next, if you’re not here with an attor-
ney, then a default can enter against you, and [y]our
company will lose the case because you cannot repre-
sent [the defendant] . . . .’’ Olowosoyo confirmed that
he understood the court’s directive.
The court then scheduled the case for trial on July
17, 2015. On that date, Olowosoyo appeared before the
court without counsel. The plaintiff’s attorney at that
time informed the court that Olowosoyo ‘‘did have a
lawyer here today but he would not enter an appearance
on [the defendant’s] behalf.’’ Accordingly, the plaintiff
asked the court to render a default judgment. The court
then addressed Olowosoyo, stating: ‘‘Sir, I’ve had a con-
versation with you in the past. I’m really not even per-
mitted to allow you to address the court because you’re
not an attorney and you’re not a defendant or a litigant
in this case. And today’s date was a final date, so a
default will enter with regard to the [defendant].’’ With
that, the proceeding adjourned. Later that day, the court
issued a notice that the defendant had been defaulted
for failure to appear.
Six days later, Attorney David E. Dobin of the law
firm of Cohen and Wolf, P.C., filed an appearance on
behalf of the defendant. At that time, the defendant
commenced an appeal from the default judgment with
this court.
On August 7, 2015, the defendant filed with the trial
court a motion to open the default judgment,6 which
alleged that reasonable cause and good defenses to the
plaintiff’s action existed, as specified in the defendant’s
May 4, 2015 answer and special defenses. The defendant
further alleged that ‘‘between June 19, 2015, the date
[Lasky] withdrew his appearance, and July 17, 2015, the
date of [the default judgment], defendant was diligent
in searching for replacement counsel. Indeed, by June
22, 2015, defendant had dropped off the file related to
this case with Attorney Brendan O’Rourke, who held
onto the file for several weeks before telling defendant,
for the first time, on July 16, 2015—one day before the
scheduled trial date—that he would attend court with
defendant but not file an appearance, severely prejudic-
ing the defendant.’’ (Emphasis in original.)
A sworn affidavit from Olowosoyo accompanied the
defendant’s motion to open the default judgment, in
which Olowosoyo affirmed that he was the owner and
president of the defendant. Olowosoyo stated in rele-
vant part that the property ‘‘was in a dilapidated condi-
tion and the [p]laintiff was interested in the
[d]efendant’s rehabilitation of the [property]. . . .
[B]oth before and after the execution of the
[agreement], representatives of the [p]laintiff, including
Bill Finch, Bill Coleman, and Max Perez represented to
me that expenditures made to improve the [property]
including cleaning up the [property] prior to execution
of the [agreement] and fixing damage to the [property]
caused by a tornado, would be credited towards the
rent due under the [agreement], that real property taxes
would be abated for [eight] years and that additional
amounts spent by [d]efendant to repair the tornado
damage would be credited towards future transactions
between [the parties]. In reliance on those representa-
tions, [d]efendant did not pay the rent that that
[agreement] states was due . . . . In further reliance
on the [p]laintiff’s representations, since 2010, [d]efen-
dant has incurred approximately $2 million in expenses
in improving the [property].’’
With respect to his efforts to secure legal counsel,
Olowosoyo stated in the affidavit that he first spoke
with O’Rourke on June 19, 2015, and ‘‘dropped off the
file at [his] office’’ on June 22, 2015. The affidavit states
that Olowosoyo thereafter spoke with O’Rourke on sev-
eral occasions about the case, and that O’Rourke
informed him that O’Rourke had ‘‘reached out’’ to the
plaintiff’s counsel on the defendant’s behalf and ‘‘was
waiting to hear back.’’ Olowosoyo then stated that ‘‘[o]n
July 16, I spoke with [O’Rourke]. The [p]laintiff’s coun-
sel called him while he was on the phone with me to
discuss the case. [O’Rourke] called me back to let me
know that the case was going to go forward the next
day and for the first time, told me that he would only
be able to go with me to court as an advisor, that he
wouldn’t be able to enter an appearance because that
would hurt my case as he was not prepared and he was
afraid the judge might not grant [a] continuance. . . .
On July 17, [O’Rourke] attended court with me. How-
ever, he did not file an appearance on that date and
the court that day entered a default judgment for failure
to appear.’’
The court heard argument on the motion to open on
August 10, 2015. At that time, the plaintiff’s counsel,
Attorney Russell D. Liskov, confirmed that O’Rourke
had in fact appeared at the courthouse with Olowosoyo
on July 17, 2015. As Liskov stated: ‘‘He came and spoke
to me to try and negotiate with me, but I wasn’t negotiat-
ing with him without an appearance in the file.’’ When
his negotiation attempts proved unsuccessful, Liskov
stated, O’Rourke ‘‘left before you opened court . . . .’’
Those representations are consistent with Liskov’s
statement at the outset of the July 17, 2015 proceeding
that Olowosoyo ‘‘did have a lawyer here today but he
would not enter an appearance on [the defendant’s]
behalf.’’ In support of the motion to open the default
judgment, the defendant’s counsel reiterated the efforts
made by Olowosoyo to secure legal counsel for the July
17, 2015 proceeding, as well as the defendant’s position
that reasonable cause existed for the nonappearance of
counsel and that good defenses existed to the plaintiff’s
claims. When that hearing concluded, the court sum-
marily denied the motion to open. The relevant portion
of the August 10, 2015 judgment file states only that
‘‘[t]he court, having heard the parties, finds the issues
for the plaintiff.’’7
On September 21, 2015, the defendant filed a notice
requesting a statement of decision by the trial court.
The record before us does not contain any response to
that request. The defendant thereafter filed a motion
for articulation with the trial court, in which it asked
the court to articulate ‘‘the factual and/or legal basis
for its August 10, 2015 [judgment] . . . denying the
defendant’s motion to open default. Without said articu-
lation, an adequate record for appellate review cannot
be provided by the [defendant] . . . .’’8 By order dated
December 14, 2016, the trial court summarily denied
that request.
In response, the defendant filed a motion for review
with this court, in which it sought an articulation of
the court’s August 10, 2015 oral decision denying the
motion to open. On March 27, 2017, this court granted
that motion and ordered the trial court to ‘‘articulate
the factual and legal bases for its August 10, 2015 order
denying the defendant’s motion to open the judgment
upon default.’’
On April 24, 2017, the trial court issued its articula-
tion. It stated: ‘‘This is a summary process matter that
commenced [on] October 22, 2014. The matter was
assigned an unusually high number of seven trial dates.
On the sixth date, Mr. Olowosoyo relieved his attorney
of his representation and the defendant was given
approximately four weeks to July 17, 2015, to obtain
new counsel. The defendant was admonished that a
default would enter if attorney representation wasn’t
achieved by July 17. On July 17, 2015, the defendant
appeared sans counsel. This is a commercial eviction
with a corporate defendant, and Mr. Olowosoyo could
not represent the commercial tenant. A default and
judgment of possession entered. On July 23 an appeal
was filed. On August 7, 2015, a motion to open was
filed, and the motion was denied after a hearing on
August 10.
‘‘The motion for articulation requests an articulation
regarding the denial of the motion to open based on
factual and legal basis. The trial court is vested with
discretion to ‘determine whether there is a good and
compelling reason for its modification or vacation.’
. . . Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 809,
695 A.2d 1010 (1997). Practice Book § 17-43 states that
a motion to open must allege [that] a good defense
exists and that the defendant was prevented by mistake,
accident or other reasonable cause from appearing. The
court finds that that situation did not exist here. The
court finds that the motion to open was denied due to
the dilatory delays of the defendant. This is a summary
process action for nonpayment of rent that commenced
on October 22, 2014. An amended answer with special
defenses was filed on May 4, 2015. This matter has had
numerous continuances and delays. The defendant was
notified on June 19, 2015, that the July 17, 2015 trial
date was a final date and of the consequences that
would follow if he did not obtain attorney representa-
tion. The assertion that Mr. Olowosoyo had an attorney
on July 17 who did not enter an appearance does not
comply with the court’s June 19, 2015 order. Nor does
the assertion create a situation where he is prevented
by mistake, accident or other reasonable cause from
appearing.’’
I
As a preliminary matter, we address the plaintiff’s
assertion at oral argument before this court that the
present appeal is moot. The following undisputed facts
are relevant to that contention. Following the com-
mencement of this appeal, the plaintiff filed a motion
to terminate the automatic appellate stay, claiming that
the appeal was frivolous and taken only for the purpose
of delay. The trial court granted that motion over the
defendant’s objection, and the defendant did not file a
motion for review of that order pursuant to Practice
Book § 66-6. The plaintiff then filed an application for
an execution for possession, which the trial court clerk
issued on November 2, 2015.
This court subsequently ordered the parties to submit
simultaneous memoranda of law addressing ‘‘whether
the defendant is still in possession of the property and,
if not, whether the appeal has become moot as a result
of the defendant vacating the property.’’ The parties
complied with that order and, in their respective memo-
randa, acknowledged that the defendant had been
evicted from the property and no longer was in posses-
sion thereof.9 The parties nevertheless disagreed as to
whether that development rendered the present
appeal moot.
On March 27, 2017, this court declined to dismiss the
defendant’s appeal on the ground of mootness. Rather,
we marked the matter ‘‘off without prejudice to the
parties briefing the mootness issue in their briefs on
the merits.’’ In their subsequent appellate briefs, neither
the plaintiff nor the defendant addressed the issue of
mootness. Nevertheless, at oral argument before this
court on January 16, 2018, the plaintiff’s counsel
remarked, at the very end of his argument, that the
present appeal was moot. In response, the defendant’s
counsel began his rebuttal by noting that the plaintiff’s
mootness argument was a ‘‘surprise’’ to him since that
issue had not been briefed by the parties. The defen-
dant’s counsel then reiterated his position, originally set
forth in the defendant’s March 17, 2017 memorandum
of law to this court, that the general rule of mootness
does not apply because adverse collateral conse-
quences result from the judgment of possession.
We normally decline to review claims asserted for
the first time at oral argument, as it is well established
that ‘‘claims on appeal must be adequately briefed, and
cannot be raised for the first time at oral argument
before the reviewing court.’’ Grimm v. Grimm, 276
Conn. 377, 393, 886 A.2d 391 (2005), cert. denied, 547
U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006);
Fairfield Merrittview Ltd. Partnership v. Norwalk, 172
Conn. App. 160, 171 n.19, 159 A.3d 684, cert. denied,
326 Conn. 901, 162 A.3d 724 (2017). That precept does
not apply when the claim is one of mootness, which
implicates the subject matter jurisdiction of this court
and thus ‘‘may be raised at any time . . . .’’ State v.
Charlotte Hungerford Hospital, 308 Conn. 140, 143, 60
A.3d 946 (2013). Moreover, the parties already have
submitted written memoranda of law to this court out-
lining their respective positions on the issue. Therefore,
despite the plaintiff’s belated assertion at the close of
its oral argument, we address the merits of that claim.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction . . . .
Because courts are established to resolve actual contro-
versies, before a claimed controversy is entitled to a
resolution on the merits it must be justiciable. . . . A
case is considered moot if [the] court cannot grant the
appellant any practical relief through its disposition of
the merits . . . .’’ (Citations omitted; internal quotation
marks omitted.) JP Morgan Chase Bank, N.A. v. Men-
dez, 320 Conn. 1, 6, 127 A.3d 994 (2015). ‘‘In determining
mootness, the dispositive question is whether a success-
ful appeal would benefit the plaintiff or defendant in
any way.’’ (Internal quotation marks omitted.) Mid-
dlebury v. Connecticut Siting Council, 326 Conn. 40,
54, 161 A.3d 537 (2017). Our review of the question of
mootness is plenary. State v. Rodriguez, 320 Conn. 694,
699, 132 A.3d 731 (2016).
‘‘Summary process appeals are particularly suscepti-
ble to becoming moot upon some action taken by the
parties.’’ Housing Authority v. Lamothe, 225 Conn. 757,
763, 627 A.2d 367 (1993). As a general matter, this court
has concluded that an appeal has become moot when,
at the time of the appeal, an appellant no longer is in
possession of the premises. See, e.g., Iacurci v. Wells,
108 Conn. App. 274, 276–83, 947 A.2d 1034 (2008) (con-
cluding appeal was moot when defendants ‘‘relin-
quished possession of the leased property’’ and ‘‘have
failed to bring to our attention any adverse collateral
consequences that will befall them’’); Cheshire v. Lewis,
75 Conn. App. 892, 893, 817 A.2d 1277 (dismissing appeal
as moot where tenant vacated property following trial
court termination of stay), cert. denied, 264 Conn. 905,
826 A.2d 177 (2003); Castle Apartments, Inc. v. Pichette,
34 Conn. App. 531, 533–34, 642 A.2d 57 (1994) (dismiss-
ing appeal where tenant vacated property and did not
raise right to possession as issue on appeal).
As our Supreme Court has explained, that general
rule does not apply when an appellant can demonstrate
that ‘‘the judgment has potentially prejudicial collateral
consequences to the defendant.’’ Housing Authority
v. Lamothe, supra, 225 Conn. 765; see also Wilcox v.
Ferraina, 100 Conn. App. 541, 548, 920 A.2d 316 (2007)
(‘‘[o]ur Supreme Court . . . has allowed us to retain
jurisdiction where the matter being appealed creates
collateral consequences prejudicial to the interests of
the appellant, even though developments during the
pendency of the appeal would otherwise render it moot’’
[internal quotation marks omitted]). Such collateral
consequences include the impairment of a party’s ability
to seek a writ of restoration, which allows ‘‘a tenant
wrongly evicted to be restored to the premises . . . .’’
Housing Authority v. Lamothe, supra, 764. In its March
17, 2017 memorandum of law to this court, the defen-
dant claimed such an impairment.
Almost two centuries ago, this state’s highest court
recognized that a party to a summary process action
that wrongly is dispossessed of leased property ‘‘is
clearly entitled’’ to ‘‘a writ restoring him to the posses-
sion’’ thereof, provided that the term of the lease ‘‘has
not yet expired.’’ Du Bouchet v. Wharton, 12 Conn. 532,
539–40 (1838); accord Evergreen Manor Associates v.
Farrell, 9 Conn. App. 77, 78, 515 A.2d 1081 (1986)
(‘‘[w]hile a writ of restoration may issue upon a reversal
of a summary process judgment, it can only issue if the
lease has not expired by its terms’’). As the Supreme
Court observed, ‘‘courts have been in the habit of award-
ing such writs . . . .’’ Du Bouchet v. Wharton, supra,
540. ‘‘If therefore, the tenant has been [wrongly] dispos-
sessed of his property, both justice and authority
require, that he be restored.’’ Id., 539.
Particularly relevant to this appeal is Yankee Sailing
Co. v. Yankee Harbor Marina, Inc., 5 Conn. App. 153,
154, 497 A.2d 93 (1985), which involved ‘‘the use of a
building’’ by certain tenants that ultimately were evicted
from the property. Like the defendant in this case, the
tenants in Yankee Sailing Co. ‘‘did not pay rent for
the use and occupancy of the building but, instead,
compensated the landlords for the use of the building by
making improvements to the property under an alleged
oral agreement.’’ Id. A summary process action fol-
lowed, at the conclusion of which the trial court
‘‘awarded the landlords immediate possession.’’ Id., 155.
This court thereafter concluded that the tenants’ appeal
was moot. In so doing, we noted that ‘‘a writ of restora-
tion may issue upon a reversal of a summary process
judgment . . . .’’ (Citation omitted.) Id., 157, citing Du
Bouchet v. Wharton, supra, 12 Conn. 539. We further
emphasized that ‘‘such a writ can only issue if the lease
has not expired by its terms.’’ Yankee Sailing Co. v.
Yankee Harbor Marina, Inc., supra, 157. Because there
was no lease between the parties in that case, this court
concluded that no practical relief could be granted,
rendering the appeal moot. Id.
By contrast, the defendant in the present case
expressly has indicated that it ‘‘seeks restoration of its
tenancy rights under the [agreement] in order to allow
it to reap the benefits of its substantial monetary invest-
ment . . . .’’10 A copy of that agreement is appended
to the plaintiff’s amended complaint. Section 3.1 of the
agreement states in relevant part that ‘‘[t]he term of
this Lease shall be for a period of ninety-eight (98) years
. . . .’’ Because ninety-eight years plainly have not
passed since the parties entered into that agreement in
2010, an avenue of practical relief remains viable under
Connecticut precedent, in the form of a writ of restora-
tion. See Du Bouchet v. Wharton, supra, 12 Conn.
539–40; Yankee Sailing Co. v. Yankee Harbor Marina,
Inc., supra, 5 Conn. App. 157. We therefore conclude
that the present appeal is not moot and turn our atten-
tion to the defendant’s claim.
II
The defendant contends that the court improperly
denied its motion to open the default judgment. ‘‘To
open a judgment pursuant to Practice Book § 17-43 (a)
and General Statutes § 52-212 (a), the movant must
make a two part showing that (1) a good defense existed
at the time an adverse judgment was rendered; and (2)
the defense was not at that time raised by reason of
mistake, accident or other reasonable cause. . . . The
party moving to open a default judgment must not only
allege, but also make a showing sufficient to satisfy
[that] two-pronged test . . . . [B]ecause the movant
must satisfy both prongs of this analysis, failure to meet
either prong is fatal to its motion.’’ (Internal quotation
marks omitted.) Little v. Mackeyboy Auto, LLC, 142
Conn. App. 14, 18–19, 62 A.3d 1164 (2013).
Our review of a ruling on a motion to open a default
judgment is governed by the abuse of discretion stan-
dard. Ruddock v. Burrowes, 243 Conn. 569, 571 n.4, 706
A.2d 967 (1998). As this court has observed, ‘‘we review
the court’s determination to deny [a defendant’s
motion] to open the default judgment for a clear abuse
of discretion. . . . The court’s discretion, however, is
not unfettered; it is a legal discretion subject to review.
. . . [D]iscretion imports something more than leeway
in decision-making. . . . It means a legal discretion, to
be exercised in conformity with the spirit of the law
and in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . In addition, the
court’s discretion should be exercised mindful of the
policy preference to bring about a trial on the merits
of a dispute whenever possible and to secure for the
litigant [its] day in court.’’ (Citations omitted; internal
quotation marks omitted.) Multilingual Consultant
Associates, LLC v. Ngoh, 163 Conn. App. 725, 735, 137
A.3d 97 (2016). With that standard in mind, we turn to
the defendant’s claim.
A
We begin by noting that the court did not determine,
in either its August 10, 2015 oral ruling or its April
24, 2017 articulation, that the defendant had failed to
demonstrate the existence of a good defense, consistent
with the first prong of the standard set forth in § 52-
212 (a). See Woodruff v. Riley, 78 Conn. App. 466, 471,
827 A.2d 743 (although defendant ‘‘asserted that she had
a good defense . . . [the trial] court made no finding
in that regard’’), cert. denied, 266 Conn. 922, 835 A.2d
474 (2003). Rather, the court in its articulation con-
cluded that the defendant had failed to satisfy the sec-
ond prong of that standard.
The record in this case plainly indicates that, from
the very onset of this litigation, the defendant has
claimed that good defenses exist to the plaintiff’s action.
Those defenses were set forth in detail in the defen-
dant’s November 6, 2014 answer and special defenses,
its November 20, 2014 amended special defenses, and
its May 4, 2015 answer and special defenses to the
plaintiff’s May 1, 2015 amended complaint.11 See foot-
notes 2 and 4 of this opinion. The present case thus is
not one in which ‘‘the defendant did not present a
defense that existed at the time of the rendition of the
[default] judgment . . . .’’ Pantlin & Chananie Devel-
opment Corp. v. Hartford Cement & Building Supply
Co., 196 Conn. 233, 241, 492 A.2d 159 (1985).
In its motion to open the default judgment, the defen-
dant incorporated those defenses by reference, stating
in relevant part: ‘‘At the time of the judgment, good
defenses to the claims asserted by the [p]laintiff in this
action existed, including lack of subject matter jurisdic-
tion, the doctrine against inequitable forfeiture, and
estoppel, as more particularly set forth in the amended
answer and special defenses filed May 4, 2014 . . . and
the affidavit of [Olowosoyo] in support of the motion
to open attached hereto . . . .’’ In light of the foregoing,
the court understandably did not conclude that the
defendant had failed to establish the existence of a
good defense at the time that the default judgment
was rendered.
B
The critical question, then, is whether the court prop-
erly concluded that the defendant failed to raise those
defenses at the July 17, 2015 proceeding by reason of
‘‘mistake, accident or other reasonable cause . . . .’’
General Statutes § 52-212 (a). As our Supreme Court
has explained, ‘‘[i]n order to determine whether the
court abused its discretion [in ruling on a motion to
open], we must look to the conclusions of fact upon
which the trial court predicated its ruling.’’ New
England Floor Covering Co. v. Architectural Interiors,
Inc., 159 Conn. 352, 358, 269 A.2d 267 (1970). Those
factual findings are reviewed pursuant to the clearly
erroneous standard; Watkins v. Demos, 172 Conn. App.
730, 735, 161 A.3d 655 (2017); under which a finding is
‘‘clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Nutmeg Housing Development Corp.
v. Colchester, 324 Conn. 1, 10, 151 A.3d 358 (2016).
In its articulation, the court expressly indicated that
it denied the defendant’s motion to open ‘‘due to the
dilatory delays of the defendant.’’12 The record before
us belies such a finding. We note in this regard that
when the plaintiff commenced this action in November,
2014, its complaint contained glaring misstatements
that ultimately necessitated revision by the plaintiff.
For example, the original complaint claimed that the
parties had entered into an ‘‘oral’’ agreement for the
lease of the property in ‘‘February, 2011.’’ As the defen-
dant pointed out in its November 6, 2014 answer and
as confirmed in the agreement appended to the plain-
tiff’s May 1, 2015 amended complaint, the parties actu-
ally entered into a written agreement on August 18,
2010. Moreover, the payment schedule alleged in the
original complaint does not accurately reflect that con-
tained in the parties’ written agreement. Although the
defendant immediately apprised the plaintiff of those
fundamental defects in its complaint, the plaintiff did
not amend its pleading until six months later on May
1, 2015. By contrast, the defendant filed its answer to
the plaintiff’s original complaint fifteen days after that
complaint was filed, and filed its answer to the amended
complaint three days after it was filed by the plaintiff.
Unlike the plaintiff, therefore, the defendant cannot ‘‘be
accused of delinquency in [its] pleadings.’’ Blue Cross/
Blue Shield of Connecticut, Inc. v. Gurski, 49 Conn.
App. 731, 737, 715 A.2d 819, cert. denied, 247 Conn. 920,
722 A.2d 809 (1998). Moreover, at no time in these
proceedings has the plaintiff offered any ‘‘justification
for [its] delay . . . in moving to amend the complaint.’’
Ruggiero v. Pellicci, 294 Conn. 473, 478, 987 A.2d 339
(2010). The record demonstrates, in unequivocal fash-
ion, that a one-half year delay was occasioned by the
plaintiff’s failure to amend its complaint in a prompt
manner.
In addition, we note that, on January 5, 2015, the
defendant filed a motion to transfer the case to the
regular docket of the Superior Court, claiming that
‘‘good defenses exist in this matter’’ and that the defen-
dant wished to ‘‘utilize the discovery process’’ and
‘‘exercise [its] right to a trial by jury.’’ The plaintiff did
not file an objection to that request until almost four
months later on April 30, 2015.13 Once again, the plaintiff
offered no justification or explanation for its delay in
responding to the defendant’s motion to transfer. The
court ultimately denied the defendant’s motion to trans-
fer on May 1, 2015—only seventy-eight days prior to
entry of the default judgment in this case.
Perhaps most astounding is the fact that, during that
seventy-eight day period, the plaintiff agreed to afford
the defendant a sixty day window to conduct discovery.
At the May 1, 2015 hearing on the motion to transfer,
the defendant had emphasized ‘‘the complexities of the
case’’ and claimed that the present dispute was not ‘‘a
traditional eviction matter’’ because ‘‘[g]ood defenses
exist.’’ In response, the plaintiff submitted that ‘‘[t]his
Housing Session is capable of resolving all issues that
we have . . . . You are a full service court and you’re
a Superior Court judge.’’ The plaintiff then invited the
defendant to conduct discovery and expressly indicated
its acquiescence thereto. As Liskov stated, ‘‘[i]f [the
defendant] wants discovery, file them, we’ll answer the
questions. . . . If [the defendant] needs time to do cer-
tain things, I’ll give [it] the time [it] needs. . . . If [it]
wants to do depositions, I’ll give [it] whatever time [it]
needs. If [it] wants to file interrogatories . . . file them.
We’ll answer them. Not a problem.’’ (Emphasis added.)
As reflected in the May 14, 2015 continuance request,
the plaintiff thereafter ‘‘agreed to a sixty day continu-
ance for completion of discovery.’’ Although the court
granted that continuance on May 14, 2015, the record
contains no explanation as to why a trial was scheduled
only thirty-six days later on June 19, 2015. In any event,
the record indicates that, in May, 2015, the plaintiff
agreed to postpone proceedings in this case to permit
the defendant to conduct discovery until the middle of
July, 2015. It bears repeating that the default judgment
at issue in this appeal was rendered on July 17, 2015.
The record further indicates that the defendant did,
in fact, conduct discovery during that period. The defen-
dant served a request for admissions on the plaintiff;
the plaintiff’s answers thereto were filed with the court
on June 15, 2015. On May 28, 2015, the defendant served
a request for production of documents on the plaintiff.
The plaintiff filed its ‘‘responses/objections’’ to that
request with the court on June 16, 2015.
Furthermore, the record reflects that every motion
for a continuance in this case was filed by the defendant
with the consent of the plaintiff. As the judgment file
that was filed with this court on August 21, 2015, notes,
‘‘[s]cheduled trials for the case on February 13, March
13, March 27, May 1 and May 15 were continued with
the consent of all parties.’’ Counsel for the defendant
likewise stated at the hearing on the motion to open
that those continuances all ‘‘were consented to continu-
ances’’ and ‘‘were agreed to because there [were] con-
tinuing negotiations between the parties.’’ The present
case thus resembles Stevenson v. Peerless Industries,
Inc., 72 Conn. App. 601, 610, 806 A.2d 567 (2002), in
which we observed that ‘‘this case does not involve a
situation that resulted in considerable delay or inconve-
nience to the court or to opposing parties.’’ As the
defendant correctly noted at oral argument before this
court, the plaintiff at no time in this case has alleged
any prejudice resulting from either the granting of the
aforementioned continuances or the granting of the
defendant’s timely motion to open.
The record also indicates that, on June 19, 2015, the
court continued the matter to July 17, 2015, after grant-
ing Lasky’s motion to withdraw as legal counsel due to
what Lasky described as ‘‘a breakdown in communica-
tion’’ with his client and ‘‘[i]rreconcilable disagreement
as to the best legal strategy . . . .’’ The defendant con-
cedes that it did not appear with legal counsel at the
July 17 proceeding. It nevertheless contends that the
record does not support the court’s finding that the
defendant’s failure to do so was for dilatory purposes.
On the particular circumstances of this case, we agree.
At the June 19, 2015 proceeding, the court granted a
continuance to afford the defendant the opportunity to
secure new legal counsel. In the affidavit submitted
with the defendant’s motion to open, Olowosoyo
averred that later on the day of June 19, 2015, he spoke
with two attorneys, O’Rourke and Kevin Ahern, regard-
ing legal representation for the defendant, and left a
message for another, Attorney Edwin Farrow. Olowo-
soyo stated that he ‘‘dropped off the case file at
[O’Rourke’s] office’’ three days later and thereafter
spoke with O’Rourke on multiple occasions about the
case, with O’Rourke informing him that he had ‘‘reached
out’’ to the plaintiff’s counsel on the defendant’s behalf
and ‘‘was waiting to hear back.’’14 Olowosoyo then
stated ‘‘[o]n July 16, I spoke with [O’Rourke]. The
[p]laintiff’s counsel called him while he was on the
phone with me to discuss the case. [O’Rourke] called
me back to let me know that the case was going to go
forward the next day and for the first time, told me
that he would only be able to go with me to court
as an advisor, that he wouldn’t be able to enter an
appearance because that would hurt my case as he was
not prepared and he was afraid the judge might not
grant [a] continuance. On July 17, [O’Rourke] attended
court with me. However, he did not file an appearance
on that date and the court that day entered a default
judgment for failure to appear.’’ (Footnote added.)
At the hearing on the motion to open, the plaintiff’s
counsel confirmed the accuracy of those latter affirma-
tions. Liskov informed the court that O’Rourke had in
fact appeared at the courthouse with Olowosoyo on
July 17, 2015. As Liskov stated: ‘‘He came and spoke to
me to try and negotiate with me, but I wasn’t negotiating
with him without an appearance in the file.’’ When his
negotiation attempts proved unsuccessful, Liskov
stated, O’Rourke ‘‘left before you opened court . . . .’’
Those representations are consistent with Liskov’s
statement at the outset of the July 17, 2015 proceeding
that Olowosoyo ‘‘did have a lawyer here today but he
would not enter an appearance on his behalf.’’
Although it is undisputed that the defendant did not
appear with legal counsel at the July 17, 2015 proceed-
ing, it is equally undisputed that Olowosoyo took steps
to secure legal counsel for the defendant and that coun-
sel did in fact appear at the courthouse on July 17, 2015,
at which time counsel attempted to negotiate with the
plaintiff on the defendant’s behalf. Under those particu-
lar circumstances, and in light of the entire procedural
history of this case as documented in the record before
us, we conclude that the court’s finding that the defen-
dant had engaged in purely dilatory delays is clearly
erroneous. A six month delay at the outset of this litiga-
tion was occasioned by the plaintiff’s failure to
promptly amend its patently defective complaint, and
the plaintiff did not file its objection to the defendant’s
January 5, 2015 motion to transfer until nearly four
months later. A mere seventy-eight days passed
between the filing of the plaintiff’s amended complaint
on May 1, 2015, and the entry of the default judgment.
Moreover, the plaintiff, on May 14, 2015, agreed to a
sixty day period of discovery, and discovery thereafter
was conducted between the parties. In such circum-
stances, the defendant’s conduct cannot be described
as dilatory in nature.
In its articulation, the court also found that no reason-
able cause existed for the defendant’s failure to appear
with counsel at the July 17, 2015 proceeding. The defen-
dant claims, and we agree, that the court’s finding is
clearly erroneous.
Significantly, this is not a case in which the defendant
was notified of the withdrawal of its legal counsel and
‘‘the necessity of procuring substitute counsel’’ but
thereafter ‘‘did nothing.’’ Testa v. Carrolls Hamburger
System, Inc., 154 Conn. 294, 300, 224 A.2d 739 (1966).
This also is not a case in which the defendant gave no
explanation for its failure to appear at the proceeding
in question. Ryan v. Vera, 135 Conn. App. 864, 870, 43
A.3d 221 (2012).
Moreover, this is not a case in which the defendant
‘‘made a conscious decision to ignore’’ the court’s direc-
tive. Dziedzic v. Pine Island Marina, LLC, 143 Conn.
App. 644, 652, 72 A.3d 406 (2013); see also Woodruff v.
Riley, supra, 78 Conn. App. 471 (‘‘[a] court should not
open a default judgment in cases where the defendants
admit they received actual notice and simply chose to
ignore the court’s authority’’ [internal quotation marks
omitted]). Rather, the record before us indicates that
(1) soon after this action was commenced, the defen-
dant filed a motion to transfer the case to the regular
docket of the Superior Court because ‘‘good defenses
exist in this matter’’; (2) the defendant asserted several
defenses to the action in its answer and special defenses
to both the plaintiff’s original complaint and its May 1,
2015 amended complaint; (3) the parties, on May 14,
2015, agreed to a sixty day period of discovery beginning
on May 14, 2015, during which the defendant in fact
engaged in discovery; (4) prior to the completion of
that period of discovery, the court held a hearing on
June 19, 2015, at which it granted Lasky’s motion to
withdraw and instructed the defendant to procure new
counsel prior to the July 17, 2015 proceeding; (5) the
defendant immediately consulted with O’Rourke,
among other attorneys, later that same day; (6)
O’Rourke took custody of the defendant’s case file three
days later and thereafter engaged in discussions with
the plaintiff on behalf of the defendant; (7) O’Rourke
did not advise the defendant of his unwillingness to file
an appearance until the day before the July 17 proceed-
ing; (8) O’Rourke at that time informed Olowosoyo that
he would appear ‘‘as an advisor’’ but would not file an
appearance ‘‘because that would hurt [the defendant’s]
case as he was not prepared and he was afraid the
judge might not grant [a] continuance’’; (9) the plaintiff’s
counsel later confirmed that O’Rourke did in fact appear
at the courthouse on July 17, 2015, and attempted to
conduct negotiations with him on the defendant’s
behalf; (10) at that July 17 proceeding, the plaintiff’s
counsel informed the court that O’Rourke had appeared
at the courthouse with Olowosoyo ‘‘but he would not
enter an appearance on [the defendant’s] behalf’’; (11)
Olowosoyo appeared at the July 17 proceeding but was
not permitted to address the court beyond identifying
himself as the president of the defendant; (12) six days
after the default judgment was rendered, new legal
counsel filed an appearance for the defendant and com-
menced an appeal with this court; and (13) three weeks
after the default judgment was rendered, the defendant
filed a motion to open predicated on both the good
defenses outlined in its answer and special defenses
to the plaintiff’s amended complaint and its efforts to
secure new legal counsel for the July 17 proceeding.
We note in this regard that Olowosoyo’s sworn affidavit
chronicles, in great detail, those efforts and O’Rourke’s
conduct in the days leading up to the July 17 proceeding,
which claims went ‘‘unrebutted at the hearing’’ on the
motion to open. Carter v. D’Urso, 5 Conn. App. 230,
235, 497 A.2d 1012, cert. denied, 197 Conn. 814, 499
A.2d 63 (1985).
The undisputed circumstances and the unique proce-
dural history of this case convince us that the court
improperly found that the defendant had not estab-
lished reasonable cause for its failure to appear with
counsel at the July 17, 2015 proceeding. In this case,
we are left with a firm conviction that a mistake has
been made, and we are mindful that the trial court’s
discretion to open a default judgment must be ‘‘exer-
cised in conformity with the spirit of the law and in a
manner to subserve and not to impede or defeat the
ends of substantial justice. . . . In addition, the court’s
discretion should be exercised mindful of the policy
preference to bring about a trial on the merits of a
dispute whenever possible and to secure for the litigant
[its] day in court.’’ (Internal quotation marks omitted.)
Multilingual Consultant Associates, LLC v. Ngoh,
supra, 163 Conn. App. 735. We therefore conclude that
the defendant, in moving to open the default judgment,
provided ‘‘sufficient information’’; id., 737; to satisfy
both prongs of the standard set forth in § 52-212 (a).
Accordingly, the trial court abused its discretion in
denying the defendant’s motion to open the default
judgment.
The judgment is reversed and the case is remanded
for further proceedings in accordance with law.
In this opinion the other judges concurred.
1
Although the defendant is identified in the summons and complaint as
‘‘Grace Building, LLC d/b/a Starlight Properties, Inc.,’’ our Supreme Court
has explained that ‘‘[t]he designation [doing business as] . . . is merely
descriptive of the person or corporation who does business under some
other name. . . . [I]t signifies that the individual is the owner and operator
of the business whose trade name follows his, and makes him personally
liable for the torts and contracts of the business . . . .’’ (Internal quotation
marks omitted.) Monti v. Wenkert, 287 Conn. 101, 135, 947 A.2d 261 (2008);
see also Black’s Law Dictionary (9th Ed. 2009) p. 455 (explaining that dba
abbreviation ‘‘signals that the business may be licensed or incorporated
under a different name’’).
2
In its November 6, 2014 special defenses, the defendant alleged that
‘‘1. [The plaintiff] retained responsibility for ground contamination to the
property. As the [plaintiff] has not undertaken the remediation referenced
in the lease, or otherwise, as agreed to, provided financing in the form of
a low interest loan for this expense, [the defendant’s] plans for development
and the overriding purpose of the ninety-eight year lease [has] been frus-
trated. 2. [The defendant] has made substantial investment in cleanup and
development of the property, such that a judgment granting plaintiff immedi-
ate possession of the property would be inequitable. 3. [The defendant] has
incurred significant costs as a result of relying on repeated promises by
representatives of the [plaintiff] that deductions in rent would be made for
costs associated with cleanup and repair of preexisting tornado damage.’’
3
The agreement defines ‘‘closing’’ as ‘‘the date upon which the parties
execute this [a]greement, a fully-executed original thereof is delivered to
[the defendant], and all of the other requirements for entry into the
[agreement] have been met pursuant to the terms of the [agreement].’’
4
Specifically, the defendant alleged: ‘‘1. Enforcement of relevant provi-
sions of the [agreement] . . . [is] unconscionable. 2. Relevant provisions
of the [agreement] were formulated as a result of undue influence exercised
over Defendant. 3. Plaintiff retained responsibility for ground contamination
to the property in the form of facilitating remediation and/or arranging for
low interest financing for this purpose. 4. As the remedial action plan for
the ground contamination referenced in the [agreement] has not been exe-
cuted or financed per the [agreement] between the parties, the overriding
purpose of the [agreement] has been frustrated. 5. Defendant has detrimen-
tally relied on promises made by Plaintiff and its representatives that invest-
ment made for cleanup and development of the property would be credited
toward rent due. 6. Defendant has detrimentally relied on promises made
by Plaintiff that Plaintiff would arrange for low interest financing for the
purposes of development and cleanup of the property. 7. Defendant has
made substantial investment in cleanup and development of the property,
such that a judgment granting Plaintiff immediate possession of the property
would be inequitable. 8. Defendant has made substantial investment in
reliance on repeated promises by Plaintiff and its representatives related
to cleanup and repair of preexisting and/or subsequent damage to the prop-
erty, such that a judgment granting Plaintiff immediate possession of the
property would be inequitable.’’
5
In its appellate brief, the plaintiff states that ‘‘[w]hile it is true that six
(6) continuances were consented to by the [plaintiff], the last [continuance
request on June 15, 2015 was] not.’’ (Emphasis in original.) Nothing in the
record substantiates that assertion, which is contrary to the content of the
June 15, 2015 motion for continuance before us. The plaintiff did not file
an objection to the continuance request, and it has not provided any docu-
mentation to support that assertion in the appendix to its appellate brief.
6
That motion to open was filed three weeks after the default judgment
was rendered, well within the four month limitation of General Statutes
§ 52-212 (a).
7
On August 21, 2015, the defendant filed an amended appeal with this
court, which indicated that the defendant also was appealing from the court’s
August 10, 2015 judgment denying the motion to open the default judgment.
8
That motion was signed on behalf of the defendant by Attorney Gary A.
Mastronardi, who filed an appearance on July 21, 2016. Approximately one
month earlier, this court granted Dobin’s motion to withdraw the appearance
of Cohen and Wolf, P.C.
9
Appended to the plaintiff’s memorandum of law was an affidavit from
Liskov, in which he indicated that the plaintiff enforced that execution of
ejectment through service of process by a city sheriff in November, 2015,
at which time the plaintiff ‘‘took possession of the premises in question.’’
10
In that regard, we note the defendant’s ancillary contention that, as a
collateral consequence of the trial court decision, it will be deprived of any
recourse for the ‘‘substantial monetary investment’’ it allegedly has made
in the property if this appeal is dismissed as moot. In its March 16, 2017
memorandum of law to this court, the plaintiff noted that ‘‘the only relief
that [the plaintiff] sought and received was possession of the property.’’ In
response, the defendant argues that ‘‘what is obviously at stake in this case
is considerably more than just the adverse effect ordinarily suffered by a
tenant in an eviction action where the tenant is merely deprived solely of
the right to occupy the leased property. Here, the substantial sums advanced
by [the defendant] in improving the [property] created legitimate, invest-
ment-backed, business expectations on the part of the defendant . . . of
which the defendant stands to be deprived, without any fair opportunity to
be heard, should this appeal be dismissed as moot.’’ Should this court reverse
the judgment of the trial court denying its motion to open, the defendant
argues, it then would have the opportunity to have those allegations decided
on their merits. Such allegations were pleaded in the defendant’s answers
and special defenses to the plaintiff’s original and amended complaints. See
footnotes 2 and 4 of this opinion.
11
In its answer to the amended complaint, the defendant alleged that
payments required under the agreement were made ‘‘in the form of agreed
upon repairs, cleanup, and/or improvements to the property.’’ In both its
special defenses and its motion to open, the defendant further alleged that
it had made substantial investments in accordance therewith. In his affidavit
appended to the defendant’s motion to open, Olowosoyo stated that ‘‘[i]n
further reliance on the [p]laintiff’s representations, since 2010, [d]efendant
has incurred approximately $2 million in expenses in improving the [prop-
erty] . . . .’’
The record before us also indicates that although payments of $70,000
and $200,000 were due under § 4.1 (c) and (d) of the agreement in February
and August, 2011, respectively, the plaintiff made no demand for payment
until 2014. For that reason, Olowosoyo stated in his affidavit appended to
the motion to open that ‘‘[a]lthough the [agreement] states that rent was
due . . . in February 2011 and August 2011, the plaintiff, consistent with
[its assurances to the defendant], did not attempt to enforce the rent and
tax terms of the [agreement] until a [n]otice of [d]efault was sent in January
2014 . . . .’’
12
‘‘Dilatory’’ is defined as ‘‘tending or intended to cause delay’’ and ‘‘charac-
terized by procrastination.’’ Merriam-Webster’s Collegiate Dictionary (11th
Ed. 2003) p. 350. It frequently is utilized to describe deliberate conduct on
the part of a litigant to delay or obstruct a court proceeding. See, e.g.,
Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 43,
664 A.2d 719 (1995); State v. J.M.F., 170 Conn. App. 120, 132, 154 A.3d 1,
cert. denied, 325 Conn. 912, 159 A.3d 230 (2017).
13
At that time, the plaintiff still had not filed an amended complaint to
rectify the fundamental deficiencies in its original complaint.
14
At oral argument before this court, the plaintiff’s counsel confirmed
that he received such calls from O’Rourke on the defendant’s behalf.