DEUTSCHE BANK NATIONAL TRUST COMPANY v. DAWN FRITZELL ET AL.
AC 38555
Connecticut Appellate Court
November 6, 2018
DiPentima, C. J., and Alvord and Bear, Js.
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The plaintiff bank sought to foreclose a mortgage on certain real property owned by the defendant. The trial court granted the plaintiff‘s motion for a judgment of strict foreclosure and rendered judgment thereon. Notice of the filing of the plaintiff‘s motion for a judgment of strict foreclosure and the court‘s judgment of strict foreclosure were sent to an address that the defendant had provided on an appearance form he filed with the clerk‘s office. Because no party exercised its right to redemption, title to the property subject to the foreclosure vested in the plaintiff. Thereafter, the defendant filed a motion to open the judgment and extend the law days, claiming that he did not receive notice of the plaintiff‘s motion for a judgment of strict foreclosure or of the court‘s judgment because hе no longer lived at the address that he had provided on the appearance form. The defendant did not file a new appearance form reflecting his change of address. The trial court denied the defendant‘s motion to open, finding that the defendant received the process he was due because the plaintiff and the court properly sent notice to the address provided by the defendant. On the defendаnt‘s appeal to this court, held that because notices of the plaintiff‘s motion and the court‘s judgment were sent to the address that the defendant provided on his appearance form, the trial court properly concluded that the defendant received the notice he was due, and, consequently, title to the subject property vested absolutely in the plaintiff following the passing of the law days; accordingly, the dеfendant‘s motion to open was moot when it was filed approximately two months after the vesting of title, as there was no practical relief that the trial court could have granted the defendant at that time, and, therefore, the court should have dismissed the motion to open as moot instead of denying it.
Argued September 7—officially released November 6, 2018
Procedural History
Action to foreclose a mortgage on certain of the defendant‘s real property, and for other relief, brоught to the Superior Court in the judicial district of New Haven, where the court, Maronich, J., granted the plaintiff‘s motion for summary judgment as to liability; thereafter, the court, Ecker, J., granted the plaintiff‘s second motion for judgment of strict foreclosure and rendered judgment thereon; subsequently, the court, Ecker, J., denied the defendant‘s motion to open the judgment, and the defendant appealed to this court. Improper form of judgment; judgment directed.
Clifford D. Fritzell, III, self-represented, the appellant (defendant).
Victoria L. Forcella, with whom, on the brief, was S. Bruce Fair, for the appellee (plaintiff).
ALVORD, J. The defendant, Clifford D. Fritzell, III,1 appeals from the trial court‘s denial of his motion to open the judgment of strict foreclosure rendered in favor of the plaintiff, Deutsche Bank National Trust Company.2 On appeal, the defendant claims that the trial court (1) erroneously denied his motion to open (2) erred by failing to vacate its order setting the law days for February 17 and 18, 2015 (3) improperly placed the burden on him to demonstrate lack of notice of the plaintiff‘s motion for judgment of strict foreclosure and (4) erred by penalizing him for being a former attorney. The first two claims involve the defendant‘s central argument that, contrary to the conclusion of the trial court, notice of the plaintiff‘s motion for judgment of strict foreclosure and the court‘s judgment of foreclosure sent to the address the defendant had provided on his appearance form did not sufficiently notify him of the proceedings against him. We agree with the court that the defendant receivеd the notice to which he was entitled, but conclude that because there was no practical relief available to the defendant, the court should have dismissed the motion to open instead of denying it.
The following facts and procedural history are relevant to our resolution of the defendant‘s claims on appeal. In August, 2011, the plaintiff commenced the underlying action to foreclose a mortgage on certain real property located at 282 North High Street in East Haven. The plaintiff filed a motion for judgment of strict foreclosure on December 13, 2011, which was granted on January 3, 2012. According to the defendant, service of process and notice of the judgment were mistakenly sent to the address of the defendant‘s father, who shares the same name as the defendant. The defendant represents that he subsequently learned of the foreсlosure action and judgment from his father. The defendant filed a motion to open the judgment on February 21, 2012. This motion was heard and granted on March 12, 2012.
On March 12, 2012, the defendant filed an appearance with the court, providing his address as 131 Mulberry Point Road in Guilford. On March 26, the defendant filed a motion to dismiss the action, arguing that he was not served at his address. On April 10, the plaintiff filed an objection to the defendant‘s motion to dismiss, arguing, inter alia, that the defendant received actual notice. On April 11, the plaintiff filed a motion to cite in the defendant, stating that the defendant may not have been properly served. The court granted the motion to cite in the defendant on April 26, and the summons and complaint were served on the defendant at 131 Mulberry Point Road in Guilford. On April 30, the court denied the defendant‘s motion to dismiss.3
On February 1, 2013, the plaintiff filed a motion for
Notice of both the filing of the plaintiff‘s motion for judgment of strict foreclosure and the court‘s judgment were sent to 131 Mulberry Point Road in Guilford, the address that the defendant had provided on the appearance form he filed with the clerk of court. The defendant represents, however, that he no longer lived at 131 Mulberry Point Road in Guilford. The defendant provided that, in August, 2013, he had moved to the property subject to the foreclosure, located at 282 North High Street in East Haven. He did not file a new appearance form reflecting this change of address.
The defendant claims that he became aware of the judgment of strict foreclosure in March, 2015, through his wife, who “perus[ed] the case activity periodically.” On April 7, the defendant filed a motion to open the judgment and extend the law days. On May 26, the trial court, Ecker, J., held a hearing on the defendant‘s motion to open the judgment. During the hearing, the defendant claimed that he did not receive notice of the plaintiff‘s motion for judgment of strict foreclosure or notice of the court‘s judgment of strict foreclosure. In addition, he argued that if he had received notice, he could have transferred the mortgage to his wife. The plaintiff argued that its pleadings, as certified in the certification page, and the court‘s notice were sent to the defendant‘s address of record with the court at the time. In response, the defendant argued that he had been sending the plaintiff correspondence from an address in Old Saybrook, and therefore, the plaintiff knew that the defendant was living at a different address than the address he provided on his appearance form.
At the conclusion of the hearing, the court issued an oral ruling denying the defendant‘s motion. The court found that the defendant received the process he was due. It explained that, because the defendant filed an appearance with the court, providing his address as 131 Mulberry Point Road in Guilford, the plaintiff and the court were entitled to rely on it. At the hearing, when discussing that the defendant should have filed an updated appearance form indicating his new address, the court stated: “[Y]ou‘re a lawyer, you should know better.” The court concluded that, because notices of the plaintiff‘s motion and the court‘s judgment were sent to the address the defendant provided, the defеndant received sufficient notification of the proceedings. This appeal followed.
“Because [m]ootness implicates [this] court‘s subject matter jurisdiction and is thus a threshold matter for [it] to resolve . . . ordinаrily, we would be required to address that issue first, before considering the merits of [an] appeal. This is so because [i]t is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no praсtical relief can follow.” (Citation omitted; internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 575, 953 A.2d 868 (2008).
In this case, however, as in Argent Mortgage Co., LLC,5 the issue of mootness is “inextricably intertwined“; id.; with the issue raised by the defendant on appeal, namely, whether the trial court improperly denied his motion to open despite his claim that he did not receive notice of the judgment and therefore could not exercise his right of redemption. In other words, our determination of whether the defendant can be granted any practical relief depends on whether the defendant was given the notice to which he was entitled when judgment was entered against him, or whether the judgment violated the defendant‘s right to due process. We therefore turn to that issue.
The defendant claims that the court should have opened the judgment of strict foreclosure because he did not receive sufficient notice of the judgment and, therefore, could not exercise his right of redemption.6 He аrgues that the notice provided was insufficient to satisfy due process. We disagree.
“[D]ue process does not require that a property owner receive actual notice” of an action before being deprived of his or her property. Cornelius v. Rosario, 138 Conn. App. 1, 14, 51 A.3d 1144, cert. denied, 307 Conn. 934, 56 A.3d 713 (2012), cert. denied sub nom. Cornelius v. Nelson, 571 U.S. 954, 134 S. Ct. 386, 187 L. Ed. 2d 28 (2013). “Rather, we have stated that due process requires the government to provide notice reasonably
The defendant was entitled to notice of the plaintiff‘s motion for judgment of strict foreclosure as well as notice of the court‘s judgment.7 The defendant does not challenge the fact that notices of both the motion and judgment were sent to the address he provided on his аppearance form.8 The appearance form filed by the defendant contained the following notice to self-represented parties: “A self-represented party is a person who represents himself or herself. If you are a self-represented party and you filed an appearance before and you have since changed your address, you must let the court and all attorneys and self-reprеsented parties of record know that you have changed your address by checking the box below . . . I am filing this appearance to let the court and all attorneys and self-represented parties of record know that I have changed my address. My new address is below.” Thus, the form explicitly informs the filer of his or her obligation to give notice of each new address.
Sending notice to the defendant‘s address as listed on his appеarance form provided the defendant with the process that he was due. Although the defendant claims that he did not receive actual notice of the judgment until after the passing of the law days, the notices sent in compliance with the rules of practice reasonably were calculated to notify the defendant of the action, which is what due process requires. See Cornelius v. Rosario, supra, 138 Conn. App. 14.
The defendant filed an appearanсe providing his address as 131 Mulberry Point Road in Guilford, the address to which the notice was sent.9 The defendant himself concedes that “[t]he purpose of [the appearance form] is to make the other parties aware of how to contact . . . one another.” Here, by filing the appearance and providing 131 Mulberry Point Road in Guilford as his address, the defendant was notifying the court and the plaintiff that he wanted to be contaсted at that address.10 See Practice Book § 3-7 (b). Thus, notices sent to that address reasonably were calculated to notify the defendant of the action, and therefore the court did not deprive the defendant of due process.
In summary, because notices of the plaintiff‘s motion and the court‘s judgment were sent to the address that the defendant provided on his appearance form, the court properly concluded that the defendant received the notice he was due. Consequently, title to the 282 North High Street property vested absolutely in the plaintiff on February 19, 2015, following the passing of the law days. In light of that fact, the defendant‘s motion to open was moot when it was filed on April 7, 2015, approximately two months after the vesting of title,
The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to dismiss the defendant‘s motion to open the judgment of strict foreclosure as moot.
In this opinion the other judges concurred.