Sovereign Bank v. Licata

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SOVEREIGN BANK v. JAMES LICATA ET AL.

(AC 40186)

Lavine, Prescott and Kahn, Js.*

Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property

owned by the defendant L, who filed counterclaims alleging breach of

contract, negligent misrepresentation, and a violation of the Connecticut

Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.). Thereafter, S

Co. was substituted as the plaintiff. The counterclaims were tried to a

jury, which returned a verdict in part for L, and the foreclosure complaint

was tried to the court, which rendered judgment in part for L in accor-

dance with the jury’s verdict, and a judgment of strict foreclosure and

set the law days. Following the trial court’s decision awarding attorney’s

fees and, inter alia, granting in part S Co.’s motion to set aside the

verdict and for judgment notwithstanding the verdict, S Co. appealed

to this court, challenging the judgment rendered against it on the counter-

claims for negligent misrepresentation and for CUTPA violations. L also

filed a cross appeal challenging the court’s decision to set aside the

verdict as to the breach of contract counterclaim, which was dismissed.

This court reversed in part the judgment of the trial court as to the

counterclaims. Several years later, L filed a motion to determine the

status of the strict foreclosure judgment, in which she claimed that her

equity of redemption was never extinguished because the passage of

the law days had been stayed by the prior appeal. S Co. filed a motion

to correct the record to reflect that a judgment of strict foreclosure had

been rendered, that the law days had commenced thereafter and that

the commencement of the law days had never been stayed or modified.

The trial court denied the motions, and L appealed to this court. There-

after, S Co. filed a motion to dismiss the appeal for lack of subject

matter jurisdiction, claiming that L’s interest in the property had been

extinguished after the law days passed. Held that the appeal was dis-

missed as moot, as there was no practical relief that could be afforded

to L due to the fact that title to the property at issue had long since

passed unconditionally to S Co.: because the record demonstrated that

the trial court rendered judgment of strict foreclosure with respect to

the subject property and that no appeal was ever filed from the judgment

rendered on the foreclosure complaint, any initial appellate stay of

execution that arose when the judgment was rendered expired after the

appeal period for that judgment had run, which was long before the

law days set by the court had passed, and, therefore, because there was

no appellate stay in effect with respect to the foreclosure judgment

when the law days began to run, absolute title to the property transferred

to the plaintiff as a matter of law after all the law days expired; moreover,

because the rules of practice (§§ 61-2 through 61-4) establish that a final

judgment disposing of a counterclaim is separate and distinct from a

judgment on the associated complaint, the foreclosure judgment gave

rise to a distinct appeal period and appellate stay that automatically

terminated upon the expiration of the period to appeal from that judg-

ment, and was not affected by the stay that resulted due to the appeal

from judgment on the counterclaim.

Considered September 7—officially released November 14, 2017

Procedural History

Action to foreclose a mortgage on certain real prop-

erty owned by the named defendant et al., and for other

relief, brought to the Superior Court in the judicial dis-

trict of Stamford-Norwalk, where the court, Tobin, J.,

granted in part the plaintiff’s motion for summary judg-

ment as to liability with respect to the defendant Cyn-

thia Licata; thereafter, the court, Tyma, J., granted the

motion filed by Seven Oaks Partners, LP, to be substi-

tuted as the plaintiff; subsequently, the defendant Cyn-

thia Licata field a counterclaim as against the substitute

plaintiff; thereafter, the counterclaim was tried to the

jury and the foreclosure complaint was tried to the

court, Nadeau, J.; verdict for the defendant Cynthia

Licata on the counterclaim; subsequently, the court,

Nadeau, J., denied the substitute plaintiff’s motion for

remittitur, granted in part the substitute plaintiff’s

motions for judgment notwithstanding the verdict and

to set aside the verdict, and rendered judgment of strict

foreclosure and in part for the defendant Cynthia Licata

on the counterclaim, from which the substitute plaintiff

appealed and the defendant Cynthia Licata cross

appealed to this court, which dismissed the cross

appeal, reversed in part the judgment of the trial court

as to the counterclaim and remanded the case to the

trial court with direction to vacate in part the damages

and attorney’s fees awards; thereafter, the court, Mintz,

J., denied the motion to determine the status of the

foreclosure judgment filed by the defendant Cynthia

Licata and denied the substitute plaintiff’s motion to

correct the record, and the defendant Cynthia Licata

appealed to this court; subsequently, the substitute

plaintiff filed a motion to dismiss the appeal. Appeal dis-

missed.

Howard R. Wolfe in support of the motion.

John F. Carberry in opposition to the motion.

Opinion

PRESCOTT, J. In this protracted foreclosure matter,

the defendant Cynthia Licata1 appeals following the trial

court’s denial of her motion asking the court to clarify

the ‘‘status’’ of a judgment of strict foreclosure that

was rendered orally in open court, more than ten years

earlier, and from the trial court’s order making copies

of the transcripts of the relevant underlying proceedings

a part of the court file. The plaintiff Seven Oaks Part-

ners, LP,2 filed a motion to dismiss the appeal on the

ground that this court lacks subject matter jurisdiction

because the appeal is moot and the decisions from

which the defendant appealed do not constitute appeal-

able final judgments. The defendant opposes the motion

to dismiss. Because we agree that there is no practical

relief that can be afforded to the defendant in this matter

due to the fact that title to the property at issue has

long since passed unconditionally to the plaintiff, we

grant the plaintiff’s motion and dismiss the appeal as

moot.3

The record reveals the following relevant facts and

procedural history. In 2001, James Licata entered into

a loan agreement with Sovereign Bank and executed a

note in the amount of $2.5 million. As security for that

loan, he and the defendant executed a mortgage on two

parcels of property in Greenwich. The first parcel was

owned by the defendant, and the second, a vacant lot

located across the street from the first parcel, was

owned by James Licata.4 As additional security, a guar-

anty for the loan was executed by First Connecticut

Consulting Group, Inc.5

James Licata failed to make timely monthly payments

on the loan and eventually was held in default. Sover-

eign Bank chose to accelerate the loan, demanded pay-

ment in full, and, in February, 2002, commenced this

action seeking a judgment of foreclosure, a deficiency

judgment against James Licata, and enforcement of the

loan guaranty.

The defendant filed an answer and special defenses

in which she alleged that she had executed the mortgage

under duress and that Sovereign Bank had breached an

implied covenant of good faith and fair dealing. James

Licata never filed a responsive pleading and was later

defaulted for failure to disclose a defense.6 In Septem-

ber, 2003, the court rendered summary judgment as to

liability only on the foreclosure complaint with respect

to the defendant.

In September, 2004, the plaintiff, which previously

had purchased and been assigned the subject note and

mortgage, was substituted into the foreclosure action

in place of Sovereign Bank. The defendant, in February,

2005, filed a pleading that asserted a new special

defense and three counterclaims, each premised upon

the plaintiff allegedly having entered into a forbearance

agreement with her. The counterclaims sounded in

breach of contract, negligent misrepresentation, and a

violation of the Connecticut Unfair Trade Practices Act

(CUTPA), General Statutes § 42-110a et seq. The plain-

tiff objected to the filing of the special defense and

counterclaims, arguing that the defendant needed per-

mission from the court to amend her previous answer.

The plaintiff also filed a motion asking the court to

render a judgment of strict foreclosure.

In March, 2005, the court overruled the plaintiff’s

objection to the special defense and counterclaims. The

plaintiff also unsuccessfully moved to sever the coun-

terclaims from the foreclosure action. The defendant’s

counterclaims were tried to a jury. The plaintiff’s claim

on the foreclosure complaint was tried to the court,

Nadeau, J. On September 27, 2006, the jury returned a

verdict in favor of the defendant on all three counter-

claims and awarded combined damages of $500,000 on

the negligent misrepresentation and breach of con-

tract counts.

On October 5, 2006, the court held a hearing at which

it heard arguments as to whether it could proceed to

rule on the foreclosure complaint in light of the jury’s

verdict on the counterclaims and its responses to

related interrogatories. After hearing arguments from

the parties, the court concluded that it would proceed to

judgment on the foreclosure complaint. After reviewing

the evidence presented, including the appraisals sub-

mitted at trial, the court made a number of findings,

including that the amount of the debt owed was

$2,947,595.84 and that the fair market value of the prop-

erty was $2.5 million. In light of there being insufficient

equity to cover the debt, the court determined, and the

parties agreed, that a judgment of strict foreclosure,

rather than a foreclosure sale, was the appropriate rem-

edy. The court ordered that the law days would com-

mence on February 6, 2007. The court indicated that it

would hold an additional hearing regarding the issue of

attorney’s fees, both as a component of the foreclosure

judgment and as part of the defendant’s damages on

the CUTPA counterclaim.7 The court then proceeded

to hear argument on whether to award punitive dam-

ages with respect to the CUTPA violation. Ultimately,

the court concluded that the defendant was entitled to

an additional $300,000 in punitive damages.

On October 10, 2006, the plaintiff filed postjudgment

motions to reconsider the punitive damages award, to

set aside the jury’s verdict on the counterclaims, for

judgment notwithstanding the jury’s verdict, and for

remittitur. The plaintiff also submitted various memo-

randa of law in support of its motions.

The court heard argument on the postjudgment

motions at a hearing on November 14, 2006, following

which it heard arguments regarding the outstanding

issue of attorney’s fees. Judge Nadeau denied the

motions for reconsideration and for remittitur, but

granted in part the plaintiff’s motion to set aside the

verdict and for judgment notwithstanding the verdict

with respect to the breach of contract count. The court

otherwise denied the postjudgment motions. With

respect to attorney’s fees, the court awarded attorney’s

fees to the plaintiff on the foreclosure complaint and

to the defendant on her CUTPA counterclaim. The court

ended the hearing by confirming with the parties that

it had made all findings necessary for the entry of a

judgment of strict foreclosure, referring to its findings

and the law days set forth at the October 5, 2006 hear-

ing.8 The court took no additional action to memorialize

the judgment, nor was such action expressly requested

by the parties under our rules of practice.9

The plaintiff filed a timely appeal on November 28,

2006, challenging the judgment rendered against it on

the CUTPA and negligent misrepresentation counter-

claims. The defendant filed a cross appeal, which was

later dismissed, that purported to challenge only the

court’s decision to set aside the jury’s verdict with

respect to the breach of contract counterclaim. Sover-

eign Bank v. Licata, 116 Conn. App. 483, 485–86, 977

A.2d 228 (2009), appeal dismissed, 303 Conn. 721, 36

A.3d 662 (2012) (certification improvidently granted).

Neither the appeal nor the cross appeal raised any chal-

lenge to the judgment of strict foreclosure.

In February, 2008, during the pendency of the appeal,

the plaintiff filed a motion with the trial court to termi-

nate the automatic appellate stay. Apparently, the plain-

tiff was concerned that the filing of the appeal or cross

appeal from the judgment on the counterclaims had

effectuated a stay of the proceedings to enforce or

carry out the foreclosure judgment, thus preventing the

running of the law days. On April 15, 2008, following a

hearing, Judge Nadeau granted the motion to terminate

an appellate stay that, for reasons we explain later, had

never actually arisen by virtue of the filing of the appeal

or cross appeal.10

The plaintiff erroneously stated in subsequent

motions filed with the trial court that the defendant’s

cross appeal had been taken from the foreclosure judg-

ment. After the cross appeal was dismissed, the plaintiff

filed motions with the trial court that asked the court

to set new law days, further suggesting that the Febru-

ary, 2006 law days had not passed because of the pen-

dency of the cross appeal. The plaintiff’s assertions

regarding the nature of the cross appeal, however, sim-

ply were inaccurate and not supported by the record.

The appeal and cross appeal forms expressly indicated

that the parties only intended to challenge aspects of

the judgment on the counterclaims, pursuant to which

the plaintiff was awarded compensatory damages for

causes of action distinct from the foreclosure remedy

sought in the complaint. Separate judgments were ren-

dered on the complaint, which was tried to the court,

and the counterclaims, which were tried to the jury.

Furthermore, the motions to set new law days were

marked over and never acted upon by the trial court.

Certainly, any assumptions made by the plaintiff regard-

ing the operation of our rules of practice are not binding

on this court and have no bearing on our present

analysis.

The defendant filed a motion asking this court to

review the trial court’s order terminating the automatic

appellate stay. This court compounded the parties’

apparent misunderstanding regarding the nature of the

purported appellate stay by granting the motion for

review and also granting relief, remanding the matter

to the trial court with direction to reconsider its termi-

nation of stay in light of our decision in Barclays Bank

of New York v. Ivler, 20 Conn. App. 163, 565 A.2d. 252,

cert. denied, 213 Conn. 809, 568 A.2d 792 (1989).11 In

response to our ruling, the trial court issued an order

rescinding its termination of stay. No additional motion

for review was filed from that order.

On August 18, 2009, this court issued an opinion that

resolved the appeal on the counterclaims. We reversed

the judgment rendered on the jury’s verdict as to the

CUTPA counterclaim and vacated the associated puni-

tive damages and attorney’s fee awards. Sovereign

Bank v. Licata, supra, 116 Conn. App. 494–95. We

affirmed, however, the judgment against the plaintiff

on the negligent misrepresentation counterclaim. Id.,

505. We rejected the plaintiff’s claims that the court

improperly denied its motion for remittitur and failed

to sustain its objection to the defendant’s claim for a

jury trial on her counterclaims.12 Id., 507. The Supreme

Court initially granted the plaintiff’s petition for certifi-

cation to appeal from our decision on October 14, 2009;

Sovereign Bank v. Licata, 293 Conn. 935, 981 A.2d 1080

(2009); but that appeal was dismissed in February, 2012,

on the ground that certification had been improvidently

granted. Sovereign Bank v. Licata, 303 Conn. 721, 723,

36 A.3d 662 (2012).13

In July, 2012, the defendant obtained a financial insti-

tution execution for her $500,000 judgment against the

plaintiff. In October, 2012, the plaintiff, who previously

had filed for bankruptcy and was represented by new

counsel, filed a motion to set law days, asserting that

the court had ‘‘withheld setting law days in furtherance

of the strict foreclosure judgment because [an] appeal

was pending’’ and that the plaintiff sought to have the

court set new law days ‘‘to complete the foreclosure

process.’’ The plaintiff also filed a new foreclosure

worksheet accompanied by an affidavit of debt, an affi-

davit of attorney’s fees and an affidavit of appraisal.

No action was taken by the court.

A year later, on October 9, 2013, the plaintiff again

filed a motion to set the law days. At the same time,

the plaintiff filed an application with the court for an

execution of ejectment. The application form indicated

that a foreclosure judgment had been rendered and that

title to the property had transferred to the plaintiff six

years earlier, i.e., on February 12, 2007. On November

19, 2013, the trial court clerk issued the execution for

ejectment. The execution authorized a proper officer

to eject the defendant from the property and to remove

her personal effects. There is no indication, however,

that the plaintiff ever had an officer execute the

ejectment. On December 2, 2013, the court clerk also

issued a certificate of judgment of strict foreclosure.

See General Statutes § 49-16 (requiring that foreclosure

certificate be recorded in land records once title

becomes absolute in mortgagee). The record reveals

no objection by the defendant either to the application

for the execution of ejectment or to the foreclosure cer-

tificate.

No further action, in fact, was taken in this matter

for another three years until July 21, 2016, when counsel

for the defendant filed a caseflow request seeking a

status conference. According to that request, the status

of the foreclosure action needed to be addressed

because the plaintiff was attempting to sell the property.

The defendant asserted that no judgment of foreclosure

had ever been rendered in favor of the plaintiff.

On January 6, 2017, the defendant filed a motion titled

‘‘Motion to Determine Status of Purported Judgment

of Strict Foreclosure.’’ In her motion, the defendant

acknowledged that the plaintiff had ‘‘filed a certificate

of foreclosure, and has treated the property as its own,

including pocketing insurance proceeds paid due to

water damage to the property.’’ The defendant neverthe-

less maintained that her equity of redemption was never

extinguished because ‘‘the setting and passage of law

days . . . never happened in this case, meaning [she]

remains the owner of the property.’’ In support of her

arguments, the defendant largely relied on the plaintiff’s

attempt to terminate the appellate stay in the prior

appeal and its unresolved requests for the court to reset

the law days. The defendant also made reference to the

judgment file submitted by the trial court. Although she

conceded that the judgment file indicated that the court

had rendered a judgment of strict foreclosure in this

matter, she nevertheless believed that it was legally

significant that the judgment file failed to mention

law days.

On January 13, 2017, the plaintiff filed a ‘‘Motion to

Correct Record.’’ In that motion, the plaintiff argued

that Judge Nadeau had rendered a final judgment of

strict foreclosure from the bench at the hearings on

October 5 and November 14, 2006, including setting law

days commencing on February 6, 2007. The plaintiff

argued that the February 6, 2007 law day set forth by

the court as part of the judgment was ‘‘never stayed,

modified, set aside or otherwise changed.’’ The plaintiff

asked the court to correct the judgment file to the extent

that it contained any errors or omissions and submitted

a proposed corrected judgment file. The plaintiff also

filed an objection to the defendant’s motion to deter-

mine status.

The court, Mintz, J., held a hearing on February 14,

2017. The court informed the parties that ‘‘[t]he record

is what the record is’’ and that the court would not

issue what it deemed an ‘‘advisory opinion’’ setting forth

the status of the judgment or resolving ownership of

the property, which the court explained could be deter-

mined from reviewing the record. With respect to the

motion to correct, the court refused to make the pro-

posed corrections to the judgment file.

To ensure a complete record in this matter, however,

the court agreed to make copies of the transcripts from

the October 5 and November 14, 2006 hearings before

Judge Nadeau a part of the court file. All parties stipu-

lated at the hearing regarding the authenticity of the

transcripts to be included in the file. The parties also

helped to identify a number of other irregularities in the

trial court’s file, including several missing or miscoded

documents, which the court granted permission to cor-

rect in accordance with an agreement reached by the

parties during a recess. The defendant filed this appeal

on March 6, 2017, from the court’s order making the

transcripts of the October 5 and November 14, 2006

foreclosure proceedings a part of the court record, and

from its order denying her motion to determine the

status of the foreclosure judgment.

The plaintiff filed the present motion to dismiss on

March 27, 2017, arguing, inter alia, that the appeal

should be dismissed for lack of subject matter jurisdic-

tion because the defendant’s interest in the property

had been extinguished by the passing of law days and,

therefore, the appeal was moot.14 The defendant filed

a timely opposition to the motion to dismiss. With

respect to mootness, the defendant stated as follows:

‘‘[The plaintiff] is correct that if a judgment of strict

foreclosure entered in 2006 and if the law days entered

therein passed, this appeal is moot. That position, how-

ever, begs the question to which [the defendant] seeks

guidance: did a judgment of strict foreclosure ever enter

in this case? Until that question is answered, the issue

of mootness is premature.’’ (Emphasis omitted.)

On July 19, 2017, this court, sua sponte, ordered the

trial court to articulate ‘‘whether a judgment of strict

foreclosure entered in this case and, if so, when did

the judgment enter and did the law days run.’’ Judge

Mintz did not directly answer the articulation request.

Rather, the court recounted findings made by Judge

Nadeau at the October 5 and November 15, 2006 hear-

ings and discussed the proceedings that occurred dur-

ing the previous appeal regarding the appellate stay.15

The court concluded its ‘‘articulation’’ by stating: ‘‘It

appears that if the appellate stay was in effect based

on the appeal of November, 2006, that the law days

have not run.’’ The converse, of course, is also true—

if the appellate stay was not in effect based on the

November, 2006 appeal, the law days have expired.16

We acknowledge that our resolution of the mootness

issue raised in the motion to dismiss is intertwined with

the merits of the defendant’s appeal. More particularly,

as noted by the defendant in her opposition to the

motion, whether this court can afford the defendant

any practical relief regarding the trial court’s actions

challenged on appeal turns on whether a judgment of

strict foreclosure was rendered in this matter, including

the setting of law days, and whether those law days

passed, thereby effectuating the passage of title. The

defendant sought to clarify those issues in her motion,

which the trial court denied. Furthermore, our resolu-

tion of the plaintiff’s motion to dismiss the appeal

requires us to consider the proceedings before Judge

Nadeau as reflected in the October 5 and November

14, 2006 transcripts, which the trial court incorporated

into the record in response to the plaintiff’s motion

to correct.

As the court observed in First National Bank of

Chicago v. Luecken, 66 Conn. App. 606, 610, 785 A.2d

1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851

(2002), we note that ‘‘[w]hile it may generally be pru-

dent, in cases where a motion to dismiss goes to the

heart of the appeal itself, to defer action until after the

parties have fully briefed any interrelated issues, in this

case we grant the plaintiff’s motion to dismiss because

the added delay incident to deferral of the question

would not, under the facts of this case, further our

policy of expediting foreclosure cases whenever possi-

ble.’’ See also Argent Mortgage Co., LLC v. Huertas,

288 Conn. 568, 575–76, 953 A.2d 868 (2008) (resolving

substantive issues raised on appeal that were inextrica-

bly intertwined with question of mootness).

Because mootness implicates our subject matter

jurisdiction; Connecticut Coalition Against Millstone

v. Rocque, 267 Conn. 116, 125, 836 A.2d 414 (2003); it

is a proper basis upon which to seek the dismissal of

an appeal. See Practice Book § 66-8. ‘‘[I]t 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 practical relief can fol-

low. . . . [If] events have occurred that preclude an

appellate court from granting any practical relief

through its disposition of the merits, a case has become

moot.’’ (Internal quotation marks omitted.) Giaimo v.

New Haven, 257 Conn. 481, 492–93, 778 A.2d 33 (2001).

‘‘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

payment of money. . . . Under our law, an action for

strict foreclosure is brought by a mortgagee who, hold-

ing 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.’’

(Citations omitted.) Barclays Bank of New York v. Ivler,

supra, 20 Conn. App. 166. Accordingly, ‘‘[if] a foreclo-

sure 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. The qualified title which the plaintiff had

previously held under his mortgage had become an

absolute one.’’ (Internal quotation marks omitted.) City

Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16,

25, 179 A. 339 (1935). In other words, if the defendant’s

equity of redemption was extinguished by the passing

of the law days, we can afford no practical relief by

reviewing the rulings of the trial court now challenged

on appeal, as doing so would have no practical effect

or alter the substantive rights of the parties.

In a foreclosure action, an appealable final judgment

exists once the trial court has determined liability and

set forth the essential components of a foreclosure judg-

ment, such as the amount of the debt owed and whether

a foreclosure should be strict or by sale. Essex Savings

Bank v. Frimberger, 26 Conn. App. 80, 80–81, 597 A.2d

1289 (1991). If the judgment is by strict foreclosure, a

final judgment also includes the setting of law days.

See Connecticut National Bank v. L & R Realty, 40

Conn. App. 492, 493, 671 A.2d 1315 (1996) (dismissing

for lack of final judgment appeal taken from strict fore-

closure judgment that was silent as to law days). A

judgment is binding and final for purposes of appeal if

notice of that judgment is given to the parties in open

court. See Practice Book § 63-1 (b).

Here, it is apparent from our review of the transcripts

submitted at the hearing on the defendant’s motion17

that a judgment of strict foreclosure was rendered on

October 5, 2006, in open court, with all parties in atten-

dance. At that hearing, the court made specific and

definite findings regarding the amount of the debt owed

and the value of the property, and it informed the parties

that it was rendering a judgment of strict foreclosure.

The court also expressly set law days to commence on

February 6, 2007.

It is axiomatic that, with limited exceptions, an appel-

late stay of execution arises from the time a judgment

is rendered until the time to file an appeal has expired.

Practice Book § 61-11 (a). If an appeal is filed, any

appellate stay of execution in place during the pendency

of the appeal period continues until there is a final

disposition of the appeal or the stay is terminated. Prac-

tice Book § 61-11 (a) and (e). If no appeal is filed, the

stay automatically terminates with the expiration of the

appeal period.

Here, although both the previous appeal and cross

appeal were taken from the final judgment rendered

on the counterclaims in this matter; no appeal was ever

filed from the judgment rendered on the foreclosure

complaint. Neither party challenged any aspect of the

judgment of strict foreclosure, as reflected in our deci-

sion resolving that prior appeal. Sovereign Bank v.

Licata, supra, 116 Conn. App. 485–86 and n.3. Our rules

of practice unquestionably establish that, for purposes

of filing an appeal, a final judgment disposing of a coun-

terclaim is separate and distinct from a judgment on

the associated complaint. See Practice Book §§ 61-2

through 61-4. For example, a judgment rendered on

an entire counterclaim is an immediately appealable

independent judgment even if an undisposed complaint

remains in the case. Practice Book § 61-2; Ace Equip-

ment Sales, Inc. v. Buccino, 273 Conn. 217, 223 n.4, 869

A.2d 626 (2005). Such a final judgment on a counter-

claim establishes a distinct appeal period from the

appeal period related to the judgment on a complaint

in the same case. See Practice Book §§ 61-2 and 61-3.

As a result of these different appeal periods, different

appellate stays of execution arise, and any automatic

stay that is extended as the result of filing an appeal

from a counterclaim will not stay proceedings to

enforce or carry out the judgment on the complaint.

Such a construction of our rules of practice is consis-

tent with our Supreme Court’s decision in Cronin v.

Gager-Crawford Co., 128 Conn. 401, 23 A.2d 149 (1941).

In that case, which began as an action for strict foreclo-

sure, the trial court eventually rendered a judgment of

foreclosure by sale but denied the plaintiffs’ claim for

a deficiency judgment. Id., 402. The plaintiffs filed an

appeal challenging only that part of the judgment deny-

ing their claim for a deficiency judgment. Id., 403. The

defendant filed a motion to erase the appeal, now a

motion to dismiss, because it was taken from only a

portion of the underlying judgment. Id. Our Supreme

Court, in denying the motion to dismiss, stated: ‘‘We

can see no valid reason why an appeal may not properly

be taken from a portion of a judgment which is so

distinct and severable that, should error be found and

the case remanded for further proceedings, the

remaining portion would be in no way affected, and we

see distinct advantages in allowing such an appeal. The

effect would be that the stay of execution incident to

the appeal would not affect the portion of the judgment

not appealed from and it would become effective with-

out the delay resulting from the appeal.’’ (Emphasis

added.) Id., 404.

Because no appeal was filed from the judgment of

strict foreclosure in this case, any initial appellate stay

of execution that arose when that judgment was ren-

dered expired after the appeal period for that judgment

had run, which was long before the law days set by the

court passed. Further, neither party sought a discretion-

ary stay of execution with respect to the foreclosure

judgment.18 Accordingly, because there was no appel-

late stay in effect when the law days began to run on

February 6, 2007, absolute title to the property trans-

ferred to the plaintiff as a matter of law after all law

days expired.

It is true that the record reflects some later confusion

by the parties, the trial court and this court regarding

whether the foreclosure judgment had been subject to

an appellate stay and whether the law days needed to

be reset. Any such misstatements or errors, however,

did nothing to alter the legal reality—law days passed

and title to the property became absolute in the plaintiff.

Furthermore, the defendant admittedly has known for

years that the plaintiff regarded the property as its own,

and she never objected to the application for an execu-

tion of ejectment, the court’s issuance of a foreclosure

certificate or the plaintiff’s receipt of insurance pro-

ceeds for the property. Accordingly, if there was any

ambiguity in the record regarding the status of this

foreclosure action, it has existed with the knowledge

and acquiescence of the defendant. It was not until the

plaintiff sought to sell the property during the pendency

of its bankruptcy action that the defendant claimed any

need for clarification.

It is also true that the defendant in this case did

not seek to have the trial court open the foreclosure

judgment and restore title in the property to her, but

only sought guidance as to the status of the foreclosure

judgment. Nevertheless, the intent of her motion for

clarification was to call into question whether the law

days had passed and, therefore, whether she retained

some property interest sufficient to prevent the plaintiff

from selling the property. Having determined that a

judgment of strict foreclosure was rendered in favor of

the plaintiff, that the judgment properly included the

setting of law days, and that the law days passed without

violating any appellate stay of execution, we conclude

that it would serve no useful purpose to engage in what

would amount to a purely academic discussion of the

propriety of the trial court’s responses to the parties’

postjudgment motions challenged in the present appeal.

Accordingly, we conclude that this appeal is moot, and

we grant the plaintiff’s motion to dismiss on that basis.

The appeal is dismissed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1

Cynthia Licata is also known and referred to in certain pleadings as

Cynthia Cortese. In addition to Cynthia Licata, the following parties were

named as additional defendants in the underlying foreclosure action: James

Licata, Susan Braun, Edward Stanley and First Connecticut Consulting

Group, Inc. Because Cynthia Licata is the only defendant participating in

the present appeal, we refer to her in this opinion as the defendant and to

the remaining defendants by name.

2

During the pendency of the foreclosure proceedings, the original named

plaintiff, Sovereign Bank, assigned the relevant note and mortgage to Seven

Oaks Partners, LP, which later was substituted as the plaintiff in place of

Sovereign Bank. Our references to the plaintiff are to Seven Oaks Part-

ners, LP.

3

Because we dismiss the appeal on mootness grounds, we do not address

whether the court’s postjudgment rulings constituted appealable final judg-

ments. See State v. Abushaqra, 153 Conn. App. 282, 283 n.2, 100 A.3d 1014

(dismissing appeal on mootness grounds without resolving final judgment

question), cert. denied, 315 Conn. 906, 104 A.3d 757 (2014).

4

James Licata later conveyed his interest in the second parcel to the

defendant.

5

First Connecticut Consulting Group, Inc., was owned by James Licata

and the defendant and specialized in arranging financing for financially

distressed parties. In re First Connecticut Consulting Group, Inc., 340 B.R.

210, 214 (D. Vt. 2006), aff’d, 254 Fed. Appx. 64 (2nd. Cir. 2007).

6

James Licata and First Connecticut Consulting Group, Inc., filed for

bankruptcy protection in June and July, 2002. As a result, the foreclosure

action was stayed as to those parties only. See Practice Book § 14-1.

7

In Benvenuto v. Mahajan, 245 Conn. 495, 496, 715 A.2d 743 (1998), our

Supreme Court held that a judgment of strict foreclosure is an appealable

final judgment even if the court has not made a determination as to an

award of attorney’s fees.

8

In relevant part, the court stated: ‘‘[T]he court points . . . the parties

to the law date which has previously been set for Feb[ruary]—and the court

pronounces the final result of a judgment via strict foreclosure on a debt

which was pronounced at the last hearing.’’ (Emphasis added.)

9

The file contains a case disposition form, JD-CL-37 (Rev. to 2000), com-

pleted by the trial court clerk, indicating that the case was disposed of on

November 15, 2006, by a ‘‘[j]udgment after completed trial, non-jury, for:

other.’’ It is unclear how this notation accurately reflects the disposition

that transpired in this matter. If it was intended to reflect the foreclosure

judgment, which was the only ‘‘non-jury’’ matter, there was a separate box

on the form to indicate a judgment of strict foreclosure. In any event, that

form is a clerical document that is in no manner dispositive of whether a

judgment has been rendered in a particular case or the form of that judgment.

In other words, erroneous coding of a judgment by a clerk cannot transform

the nature of the judgment from that which was actually rendered by the

court.

10

In response to a request for articulation by the defendant as to the basis

for its decision to terminate the stay, the trial court acknowledged, but

failed to credit, the defendant’s argument that nothing could be done to

return title to the defendant even if she prevailed on appeal. The court

explained: ‘‘If that statement were indeed true, it would suggest that this

court’s lifting of the stay was not well pronounced. However, the court felt

that a certain appellate result would reverse the foreclosure this trial court

allowed, requiring a return of the property from the plaintiff to defendant.’’

11

Barclays Bank of New York v. Ivler, supra, 20 Conn. App. 166–67, stands

for the proposition 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 do so would result in an extinguishment of the right of redemption

pending appeal.

12

Because in the prior appeal the defendant never filed a brief in response

to the claims raised by the plaintiff, or in support of her own cross appeal,

the cross appeal was dismissed, and the appeal was decided on the basis

of the plaintiff’s brief and argument only. Sovereign Bank v. Licata, supra,

116 Conn. App. 486 n.3.

13

The defendant filed a cross appeal with the Supreme Court, which the

plaintiff moved to dismiss. The court granted the motion to dismiss on

February 9, 2010.

14

Although generally a motion to dismiss an appeal must be filed within

ten days of the filing of the appeal, a motion to dismiss based on ‘‘lack of

jurisdiction may be filed at any time.’’ Practice Book § 66-8.

15

With respect to Judge Nadeau’s findings, Judge Mintz stated in relevant

part: ‘‘The court articulates as follows: On November 14, 2006, Judge Nadeau

on page 116 of the transcript stated the following: ‘[H]aving said that, the

court points the parties to the law date which has previously been set for

February and the court pronounces the final result of a judgment via strict

foreclosure on a debt which was pronounced at the last hearing.’ The last

hearing Judge Nadeau is referring to occurred on October 5, 2006. At that

hearing, on page seventy-eight of the transcript, Judge Nadeau determined

the debt to be $2,947,595.84. He went on to find the reasonable value of the

property to have been ‘testified to effectively’ as $2.5 million. On page

seventy-nine of said transcript, Judge Nadeau awarded a $150 title fee, and

an appraiser’s fee of $250. On page eighty-seven [to] eighty-eight, Judge

Nadeau discusses different law days . . . . It appears that Judge Nadeau

entered February 6 as the law date.’’

16

On August 10, 2017, this court ordered the parties to file simultaneous

supplemental memoranda addressing the final judgment issue further in

light of the court’s articulation. Each party complied with our order. Both

parties had a full opportunity to brief the question of mootness in support

of or in opposition to the motion to dismiss.

17

Our reliance on the transcripts in the record may, at first blush, appear

at odds with the defendant’s challenge on appeal to the court’s decision to

include them in the record in the first instance. We do not share that

concern for several reasons. First, the defendant has never challenged the

authenticity of the transcripts or claimed that they fail to represent what

transpired before Judge Nadeau at those hearings. Second, this court is

entitled to take judicial notice of any proceeding between the parties that

occurred and to order the record perfected to the extent necessary to

conduct our review. Practice Book § 60-2; see In re Jah’za G., 141 Conn.

App. 15, 24, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013).

Furthermore, even without direct reference to the transcripts, Judge Mintz,

in his articulation, sets forth all the necessary findings based upon his review

of the transcripts. That articulation and its findings were not challenged by

the parties and, thus, are properly part of the record before this court. See

footnote 15 of this opinion.

18

Certainly, although no automatic stay may arise, any party may request

the imposition of a discretionary stay pending appeal in accordance with

Practice Book § 61-12. Here, the defendant never requested the trial court

to impose a stay of the foreclosure judgment pending resolution of the

counterclaim appeal and cross appeal.