Atlantic St. Heritage Associates, LLC v. Bologna

A
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   ATLANTIC ST. HERITAGE ASSOCIATES, LLC v.
          PAUL NICHOLAS BOLOGNA
                  (AC 44441)
                       Prescott, Elgo and Suarez, Js.

                                  Syllabus

The plaintiff sought, by way of summary process, to regain possession of
   certain premises occupied by the defendant. The trial court granted the
   plaintiff’s motion for default for failure to plead and rendered a judgment
   of possession in favor of the plaintiff. The following day, the defendant
   filed a motion to open the judgment, which the court denied one week
   later. Notice of the court’s decision denying the motion to open issued
   two days after that, and the defendant appealed that same day. There-
   after, the plaintiff filed a motion to terminate the appellate stay, which
   sought, in substance, a determination that there was not, in fact, an
   appellate stay in effect because the defendant had not filed his appeal
   within the five day statutory (§ 47a-35) appeal period in summary process
   actions and that the filing of the motion to open did not extend the
   appeal period. The defendant filed an objection, arguing that the case
   was controlled by Young v. Young (

249 Conn. 482

). Following a hearing,
   the court determined that no appellate stay was in effect that would
   prevent the execution of the judgment of possession during the pendency
   of the appeal. The defendant thereafter filed a timely motion for review
   with this court. Held that the case was controlled by Young, and, there-
   fore, the defendant’s appeal was timely and, pursuant to § 47a-35 (b),
   execution of the judgment of possession was stayed until the final
   determination of the cause: because the defendant filed his motion to
   open well within the five day appeal period and, pursuant to the applica-
   ble rule of practice (§ 63-1 (c) (1)), a motion to open is a motion that,
   if granted, would render the judgment ineffective, a new five day appeal
   period arose when notice of the court’s decision denying the motion to
   open issued, and the defendant filed his appeal on that same day, well
   within the new appeal period; accordingly, the defendant’s motion for
   review and the relief requested therein were granted, and the trial court’s
   order on the plaintiff’s motion to terminate the appellate stay was
   vacated.
         Considered March 17—officially released April 27, 2021

                            Procedural History

  Summary process action brought to the Superior
Court in the judicial district of Stamford-Norwalk,
Housing Session at Norwalk, where the defendant was
defaulted for failure to plead; thereafter, the court,
Spader, J., rendered a judgment of possession for the
plaintiff; subsequently, the court denied the defendant’s
motion to open, and the defendant appealed to this
court; thereafter, the court, Spader, J., issued an order
on the plaintiff’s motion to terminate the appellate stay,
and the defendant filed a motion for review with this
court. Motion for review granted; relief granted.
 Paul N. Bologna, self-represented, in support of the
motion.
   Kurosh L. Marjani and Gessi Giarratana, in opposi-
tion to the motion.
                         Opinion

   PRESCOTT, J. In this commercial summary process
action, the trial court determined that there was no
automatic appellate stay that would prevent the execu-
tion of the judgment of possession during the pendency
of this appeal. Pursuant to Practice Book § 61-14, the
defendant, Paul Nicholas Bologna, doing business as
Paul N. Bologna & Associates, timely filed a motion for
review of that decision. We agree with the defendant
that the trial court misapplied our Supreme Court’s
decision in Young v. Young, 

249 Conn. 482

, 

733 A.2d
835

(1999), in reaching the conclusion that there is no
automatic stay in existence. By order dated March 17,
2021, we granted the defendant’s motion for review,
granted the relief requested, vacated the trial court’s
decision, and indicated that an opinion would follow.
This opinion provides our reasons for that order.
  The following procedural history is relevant to our
review. The plaintiff, Atlantic St. Heritage Associates,
LLC, is the owner of a commercial building located at
184 Atlantic Street in Stamford. The defendant occupies
a portion of the basement of that building (premises).
The plaintiff served a notice to quit on the defendant
on October 14, 2020, for nonpayment of rent, lapse of
time, and termination of whatever right or privilege he
once had to occupy the premises. The defendant did
not quit possession. The plaintiff then initiated this
action by service of a summary process summons and
a three count complaint on November 17, 2020.
   On December 3, 2020, after the defendant had
appeared, the plaintiff filed a motion for default for
failure to plead and for a judgment of immediate posses-
sion to enter on the default. On December 7, 2020, the
defendant filed an objection to that motion, but he did
not file an answer to the complaint.
  On December 8, 2020, the court, Spader, J., granted
the plaintiff’s motion for default and rendered a judg-
ment of immediate possession in favor of the plaintiff.
On December 9, 2020, the defendant filed a motion to
open the judgment, which the court denied on Decem-
ber 16, 2020. Notice of the court’s decision denying the
motion to open issued on December 18, 2020, and the
defendant filed this appeal that day. The defendant’s
appeal form referenced both the date of the judgment
of possession and the denial of the motion to open.1
   On January 7, 2021, the plaintiff filed a motion to
terminate the appellate stay pursuant to Practice Book
§ 61-11 (e). The substance of the motion, however, did
not seek termination of the appellate stay but, instead,
sought a determination that there was no appellate stay
in effect because the defendant did not file his appeal
within five days of the judgment of possession and that
the filing of a motion to open does not extend the appeal
period. The defendant filed an objection arguing that
this matter was controlled by Young v. 

Young, supra

,

249 Conn. 482

. On January 26, 2021, the court heard
the parties at a remote hearing on the record. On Febru-
ary 4, 2021, the court issued a four page memorandum
of decision in which it determined that there was no
appellate stay in effect and, therefore, no stay for it to
terminate. This timely motion for review followed.2
    We begin our discussion by acknowledging that
‘‘[s]ummary process is a special statutory procedure
designed to provide an expeditious remedy. . . . It
enable[s] landlords to obtain possession of leased prem-
ises without suffering the delay, loss and expense to
which, under the common-law actions, they might be
subjected by tenants wrongfully holding over their
terms. . . . Summary process statutes secure a prompt
hearing and final determination. . . . Therefore, the
statutes relating to summary process must be narrowly
construed and strictly followed.’’ (Internal quotation
marks omitted.) Bayer v. Showmotion, Inc., 

292 Conn.
381

, 388, 

973 A.2d 1229

(2009).
   Appeals and stays of execution relating to summary
process actions are governed by General Statutes § 47a-
35.3 In HUD/Barbour-Waverly v. Wilson, 

235 Conn. 650

,
656, 

668 A.2d 1309

(1995), our Supreme Court deter-
mined that ‘‘the legislature intended to make the five
day time limitation set forth in § 47a-35 a jurisdictional
prerequisite to an appeal from a housing court ruling
in a summary process eviction proceeding.’’

Id., 656.

In
that case, the defendant filed her appeal ‘‘nineteen days
after the expiration of the appeal period set forth in
§ 47a-35.’’

Id., 655.

Within the five day appeal period,
however, she had filed a motion for an extension of
time to appeal, which the trial court had granted.

Id.,
653–55.

Our Supreme Court determined that the exten-
sion of time to appeal had no effect and held that this
court had properly dismissed the defendant’s appeal
for lack of subject matter jurisdiction on the ground
that it was untimely.

Id., 659.

   Four years later, in Young v. 

Young, supra

, 

249 Conn.
482

, our Supreme Court considered the effect, if any,
of a motion to reargue pursuant to Practice Book § 11-
11 filed within the five day appeal period of § 47a-35.
It held that the motion to reargue was unlike the motion
for an extension of time to appeal that was at issue in
HUD/Barbour-Waverly.

Id., 489

n.15. Rather, the timely
filing of the ‘‘motion to reargue suspended the five day
appeal period in § 47a-35 until the . . . denial of that
motion.’’

Id., 496.

  The court in Young relied on our rules of practice,
which ‘‘[do] not enlarge or modify the statutory appeal
period, but, rather, [give] guidance in determining when
the appeal period shall commence, and in the case of
any motion, which, if granted, would allow the court
to render a new judgment, when the new appeal period
shall commence.’’

Id., 495;

see also Practice Book § 63-
1 (c) (1).4 The court reasoned that a motion to reargue
pursuant to Practice Book § 11-11 is a motion that, if
granted, could render the judgment or decision ineffec-
tive under Practice Book § 63-1. Young v. 

Young, supra

,

249 Conn. 495

. Our Supreme Court applied Practice
Book § 63-1 and determined that the defendants’ motion
to reargue, which was filed within the five day appeal
period, suspended that appeal period until the trial
court resolved that motion.

Id., 496.

The defendants
timely appealed following the denial of that motion,
and, therefore, their ‘‘appeal of the underlying judgment
was timely.’’

Id.
In the present

case, as noted by the trial court, the
defendant did not file a motion to reargue pursuant to
Practice Book § 11-11 within the five day appeal period.
He instead filed a motion to open the judgment.
Because, however, a motion to open is among the
motions expressly included in Practice Book § 63-1 (c)
(1), we are not persuaded that Young is distinguishable
from the present case on that basis. We will nevertheless
address the plaintiff’s arguments to the contrary.
   The plaintiff and the trial court relied on an older
decision of the Appellate Session of the Superior Court
for the proposition that ‘‘the filing of a motion to open
a summary process judgment does not toll the [five
day] appeal period.’’ Maccio v. Hundley, 

36 Conn. Supp.
623

, 625, 

422 A.2d 953

(App. Sess. 1980). The motion
to open in Maccio, like the motion in this case, was
filed one day after the judgment of possession was
rendered.

Id., 624.

The defendant in Maccio appealed
following the denial of the motion to open.

Id. The court
in

Maccio rejected the defendant’s argument concern-
ing the applicability of the rule of practice equivalent
to Practice Book § 63-1 (c) (1) that was then in effect5
and dismissed the appeal as untimely as to the judgment
of possession.

Id., 624–25.

To the extent that Maccio
held that this rule of practice is inapplicable in the
context of a summary process action, it is inconsistent
with Young and is no longer good law.
   The trial court here supports its reliance on Maccio
with reference to this court’s decision in Lopez v. Liv-
ingston, 

53 Conn. App. 622

, 

731 A.2d 335

(1999), which
was issued shortly before our Supreme Court officially
released its decision in Young. In Lopez, the defendants
conceded that they filed their motion to open ‘‘after the
five day statutory appeal period set forth in . . . § 47a-
35 (b) had expired.’’

Id., 625.

They appealed from the
denial of that motion to open.6 Relying on Maccio, this
court rejected the defendants’ argument that ‘‘the judg-
ment of possession in favor of the plaintiff was sus-
pended by the defendants’ filing of the motion to open’’
and concluded that the ‘‘filing of a motion to open . . .
does not stay execution of the judgment.’’ Lopez v.

Livingston, supra

, 625 n.6. That statement in Lopez is
correct when, as in Lopez itself, the motion to open is
filed outside of the five day statutory appeal period
from the judgment of possession. Under those circum-
stances, there is no stay of execution pursuant to § 47a-
35 (b).
   The present case is controlled by Young. The defen-
dant here filed his motion to open one day after the
court rendered the judgment of possession, well within
the five day appeal period set forth in § 47a-35. A motion
to open is a motion that, if granted, would render the
judgment ineffective pursuant to Practice Book § 63-1
(c) (1). A new five day appeal period from the judgment
of possession, including a new stay period, arose on
December 18, 2020, when notice of the trial court’s
decision denying the motion to open issued. See Young
v. 

Young, supra

, 

249 Conn. 496

. The defendant filed this
appeal on December 18, 2020, which was within that
new five day appeal period. Accordingly, we conclude
that this appeal is timely as to the underlying judgment
of possession and the denial of the motion to open7 and
‘‘execution shall be stayed until the final determination
of the cause’’ pursuant to § 47a-35 (b).
   The defendant’s motion for review is granted, the
relief requested is granted, and the trial court’s February
4, 2021 order on the plaintiff’s motion to terminate the
appellate stay is vacated.
      In this opinion the other judges concurred.
  1
     The defendant included December 8, 2020, as the ‘‘[d]ate of judgment(s)
or decision(s) being appealed’’; December 18, 2020, as the ‘‘[d]ate of issuance
of notice on any order on any motion that would render judgment ineffec-
tive’’; and listed ‘‘[d]enial of motion to open’’ as the action that constitutes
an appealable judgment or decision.
   2
     Notice of the court’s decision issued from the appellate clerk on February
11, 2021. The defendant filed this timely motion for review on February 17,
2021. See Practice Book § 66-6. The plaintiff filed a timely opposition to
this motion.
   3
     General Statutes § 47a-35 provides: ‘‘(a) Execution shall be stayed for
five days from the date judgment has been rendered, provided any Sunday
or legal holiday intervening shall be excluded in computing such five days.
   ‘‘(b) No appeal shall be taken except within such five-day period. If an
appeal is taken within such period, execution shall be stayed until the final
determination of the cause, unless it appears to the judge who tried the
case that the appeal was taken solely for the purpose of delay or unless
the defendant fails to give bond, as provided in section 47a-35a. If execution
has not been stayed, as provided in this subsection, execution may then
issue, except as otherwise provided in sections 47a-36 to 47a-41, inclusive.’’
   4
     In its analysis, the court in Young refers to Practice Book § 63-1 (b).
Young v. 

Young, supra

, 

249 Conn. 494

. Practice Book § 63-1 has been
amended several times since Young was decided, and the relevant language
now resides in subsection (c).
   Practice Book § 63-1 (c) (1) provides in relevant part: ‘‘If a motion is filed
within the appeal period that, if granted, would render the judgment, decision
or acceptance of the verdict ineffective, either a new twenty day period or
applicable statutory time period for filing the appeal shall begin on the day
that notice of the ruling is given on the last such outstanding motion . . . .
   ‘‘Motions that, if granted, would render a judgment, decision or acceptance
of the verdict ineffective include, but are not limited to, motions that seek:
the opening or setting aside of the judgment; a new trial; the setting aside
of the verdict; judgment notwithstanding the verdict; reargument of the
judgment or decision; collateral source reduction; additur; remittitur; or any
alteration of the terms of the judgment.
   ‘‘Motions that do not give rise to a new appeal period include those that
seek: clarification or articulation, as opposed to alteration, of the terms of
the judgment or decision; a written or transcribed statement of the trial
court’s decision; or reargument of a motion listed in the previous para-
graph. . . .’’
   5
     Practice Book (1978) § 3007 provides in relevant part: ‘‘The party appeal-
ing shall, within twenty days, except where a different period is provided
by statute, from the issuance of notice of the rendition of the judgment or
decision from which the appeal is taken file an appeal . . . but if within
the appeal period any motion is filed which, if granted, would render the
judgment or decision ineffective, as, for example, a motion to open the
judgment . . . the period of time for filing an appeal shall commence
from the issuance of notice of the decision upon the motion . . . .’’ (Empha-
sis added.)
   6
     Although not stated in that opinion, a review of the record in Lopez
indicates that the defendants filed their appeal within five days of the denial
of their untimely motion to open. This court determined that it had jurisdic-
tion to consider the appeal from the denial of the motion to open. Lopez
v. 

Livingston, supra

, 

53 Conn. App. 623

n.1.
   7
     See footnote 1 of this opinion.

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