198 Conn.App. 885
Conn. App. Ct.2020Background
- Plaintiff bank sued to foreclose a mortgage on defendant’s Stratford residence; trial began Feb 5–6, 2019.
- Defendant’s counsel moved for continuances, claiming an Appellate Court appearance; trial court denied the continuances and threatened disciplinary referral for misrepresentation.
- Counsel did not appear for the Feb 6 continuation; Judge Hartmere entered a foreclosure judgment and the defendant immediately appealed.
- The trial court later learned the Appellate Clerk had misinformed the court and that counsel in fact had a scheduled Appellate Court matter; Judge Bellis vacated the Feb 6 foreclosure judgment and set a new trial.
- A new trial was held April 10, 2019; Judge Thim entered a second judgment of strict foreclosure; defendant filed an amended appeal alleging the second judgment violated the automatic appellate stay arising from her initial appeal.
- Trial court and appellate court held that vacatur and entry of a new foreclosure judgment did not violate the appellate stay because vacatur did not enforce the prior judgment and the new judgment is itself appealable (with law days stayed by the amended appeal).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether vacating the first foreclosure judgment and entering a second while an initial appeal was pending violated the automatic appellate stay of execution | Vacatur and a new trial are permissible; vacatur did not execute the prior judgment and any new law days are stayed once appealed | Vacatur + new judgment circumvented the appellate stay and improperly permitted the court to affect the appealed judgment | Court affirmed: vacatur did not violate the stay because it did not enforce the appealed judgment; the new foreclosure judgment is itself appealable and law days were stayed by the amended appeal |
Key Cases Cited
- Sovereign Bank v. Licata, 178 Conn. App. 82 (2017) (discusses continuation of appellate stay while appeal pending)
- Ruiz v. Victory Properties, LLC, 180 Conn. App. 818 (2018) (trial court retains jurisdiction during appeal so long as it does not enforce the judgment)
- Preisner v. Aetna Cas. & Sur. Co., 203 Conn. 407 (1987) (automatic stay prevents a judgment winner from enjoying the fruits of victory pending appeal)
- RAL Management, Inc. v. Valley View Associates, 278 Conn. 672 (2006) (law days cannot pass to vest title while an appellate stay exists)
- Wachovia Mortg., FSB v. Toczec, 189 Conn. App. 812 (2019) (resetting expired law days during a pending appeal can violate the appellate stay when done to effectuate an appealed judgment)
- Connecticut Nat’l Bank v. L & R Realty, 40 Conn. App. 492 (1996) (law days are necessary for a strict foreclosure judgment to be final for appeal)
- Deutsche Bank Nat’l Trust Co. v. Bertrand, 140 Conn. App. 646 (2013) (issues not briefed are deemed abandoned on appeal)