CUMMINGS ENTERPRISE, INC. v. MANUEL MOUTINHO, TRUSTEE
AC 44437
Appellate Court of Connecticut
March 8, 2022
Prescott, Moll and Pellegrino, Js.
Argued January 6
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The plaintiff sought to foreclose a mortgage on certain real property owned by the defendant. The trial court granted the defendant‘s motion to dismiss, concluding that the plaintiff lacked standing to bring a forеclosure action because any mortgage interest the plaintiff had held in the subject property had been foreclosed in an earlier action brought by the defendant, and the plaintiff appealed to this court. After the defendant‘s attorney, in his brief to this court, refuted certain factual representations made by the plaintiff‘s attorney in the plaintiff‘s principal brief, the plaintiff‘s attorney failed to clarify the matter in the plаintiff‘s reply brief. During oral argument before this court, when the plaintiff‘s attorney was questioned about the disputed factual representations, he was unable or unwilling to vouch for the veracity of those statements, did not direct the court‘s attention to any relevant portion of the record, and did not provide any citation to the record to support those factual assertions. Approximately one month later, the plaintiff‘s attorney filed a motion with this court for leave to correct the plaintiff‘s brief. Held:
- The plaintiff could not prevail on its challenge to the trial court‘s dismissal of its action; because the plaintiff, who was defaulted for failure tо appear in the prior foreclosure action brought by the defendant, made no effort to redeem on or before its designated law day, its mortgage interest was extinguished and, after all law days had passed, title to the property vested in the defendant, leaving the property no longer subject to the plaintiff‘s mortgage.
- This court denied the motion for leave to correct the plaintiff‘s brief filed by the plaintiff‘s attorney as untimely: thе plaintiff‘s attorney waited too long to correct the misrepresentations, and his effort to remedy them in their entirety was lacking; moreover, the plaintiff‘s attorney was placed on notice that future, similar conduсt would result in the imposition of sanctions and/or professional discipline.
Argued January 6—officially released March 8, 2022
Procedural History
Action to foreclose a mortgage on certain real property owned by the defendant, and for other relief, brought to the Superiоr Court in the judicial district of Fairfield, where the court, Spader, J., granted the defendant‘s motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed; motion denied.
Kenneth A. Votre, for the appellant (plaintiff).
James M. Nugent, for the appellee (defendant).
PER CURIAM. The plaintiff, Cummings Enterprise, Inc., appeals from the judgment оf the trial court dismissing for lack of standing its foreclosure action brought against the defendant, Manuel Moutinho, Trustee for the Mark IV Construction Co., Inc., 401 (K) Savings Plan. The court granted the defendant‘s motion to dismiss, concluding that the plaintiff lacked standing to bring a foreclosure action because any mortgage interest that the plaintiff once may have held with respect to the subject property, an undeveloped building lot in Stratford, had been foreclosed in an earlier foreclosure action brought by the defendant. Because the plaintiff, who was defaulted for failure to appear in the prior foreclosure action, made no effort to redeem on or before its designated law day, its mortgage interest was extinguished, and, after all law days had passed, title to the property vested in the defendant, leaving the property no longer subject to the plaintiff‘s mortgage. On appeal, the plaintiff raises a number of convoluted arguments challenging the court‘s granting of the motion to dismiss. On the basis of our thorough review of the record, briefs, and applicable law, we conclude thаt the plaintiff‘s arguments are devoid of merit. Accordingly, we affirm the judgment of the trial court.
Although further discussion regarding the merits of the plaintiff‘s appeal is unwarranted, we take this opportunity briefly to address certain factuаl misrepresentations contained in the plaintiff‘s brief on appeal. The plaintiff‘s principal argument before the trial court regarding its standing to pursue the underlying foreclosure action was that the law days that the сourt set in the defendant‘s previous foreclosure action purportedly had passed without legal effect due to a bankruptcy stay or extension period that arose as a result of the filing of a bankruptcy petition by 10-5th, LLC, an entity that allegedly had acquired an ownership interest in the subject property. In its appellate brief, the plaintiff made the following factual assertions: “10-5th, LLC, is an entity that was a party to the previous forеclosure action and at one point held title to the subject property,” and “[t]he trial court, in the previous foreclosure, was asked to reset the law days after the dismissal of 10-5th, LLC‘s bankruptcy proceeding.” The рlaintiff provided no citation to the record to support these factual assertions, although the brief contained citations to the record with respect to other factual statements. See
During oral argument before this court, the panel asked the attorney for the plaintiff, Kenneth A. Votre, about the disputed factual representations and his failure either to clarify the matter in his reply brief or, if necessary, to make corrections to the brief prior to oral argument. Although he asserted on the one hand that he and/or his staff hаd verified the veracity of the statements in the brief prior to oral argument, he was unwilling or unable to vouch for the veracity of those statements, could not direct the court‘s attention to any relevant portion of the record, and claimed that, despite the purported efforts to verify the facts, he might still be mistaken. Nearly a month after oral argument, the plaintiff filed a motion with this court titled a “Request For Leave To Correct Apрellant‘s Brief.” In that motion, the plaintiff states that, “[a]t oral argument it, albeit late, became apparent to counsel that 10-5th, LLC, was, in fact, not a party to the prior foreclosure action . . . .” There is no explаnation for why this error occurred and why, despite it having been brought to counsel‘s attention by his opponent, Attorney Votre failed to correct the misrepresentations in his reply brief or at oral argument. Instead, cоunsel took an additional month to correct his error. The motion also makes no mention of the other factual misstatement in the plaintiff‘s brief, namely, that, following the dismissal of 10-5th, LLC‘s bankruptcy action, a request was made to the court in the prior foreclosure action to reset the law days. Nevertheless, this fact is removed from the proposed amended fact section appended to the plaintiff‘s motion.
Attorneys have an obligation to act fairly and with candor in all of their dealings before the court, which includes factual statements made in open court or in pleadings and other written submissions. See, e.g., Daniels v. Alander, 75 Conn. App. 864, 879, 818 A.2d 106 (2003), aff‘d, 268 Conn. 320, 844 A.2d 182 (2004). That obligation is codified in
The judgment is affirmed.