Bank of New York Mellon v. Francois

B
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   THE BANK OF NEW YORK MELLON, TRUSTEE
             v. BEAGY FRANCOIS
                  (AC 42573)
                     Prescott, Devlin and Sheldon, Js.

                                  Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property
   owned by the defendant. During trial, the defendant’s counsel filed a
   motion for a continuance, on the basis that he was due to appear in
   this court in another matter on the second day of the trial. The defendant
   and the defendant’s counsel thereafter failed to appear for the scheduled
   continuation of the foreclosure trial. The court denied the motion and
   rendered a judgment of foreclosure, from which the defendant appealed.
   The trial court thereafter vacated the judgment of foreclosure and set
   a new trial date, after it was discovered that there had been miscommuni-
   cations among court staff and the defendant’s counsel had, in fact, been
   required to appear at this court. A new foreclosure trial was held and
   the trial court rendered a judgment of strict foreclosure, from which
   the defendant filed an amended appeal. On appeal, the defendant claimed
   that the trial court improperly vacated the prior judgment of foreclosure
   and rendered a new judgment of strict foreclosure in violation of the
   automatic appellate stay in effect that arose as a result of the defendant’s
   initial appeal. Held that the defendant’s claim that the appellate stay of
   execution arising from the vacated first judgment and initial appeal was
   violated when the trial court rendered its second judgment of strict
   foreclosure was unavailing, as the trial court had the authority to vacate
   a judgment on appeal, even if the effect of such an order was to render
   any appeal from that judgment moot; although this court agreed that
   any appellate stay of execution resulting from the filing of the initial
   appeal technically continued at the time the trial court vacated the first
   judgment of foreclosure and at the time the trial court rendered the
   second judgment of strict foreclosure, the court’s vacatur of the first
   judgment could not have violated the appellate stay because it did
   nothing to enforce or carry out that judgment, but, to the benefit of the
   defendant, merely returned the parties to the same legal position that
   the parties occupied prior to the rendering of the initial judgment and,
   similarly, the new foreclosure judgment rendered in favor of the plaintiff
   did nothing to execute, effectuate, or give legal effect to any judgment
   in contravention of an appellate stay, the court had continuing jurisdic-
   tion to act in an ongoing matter despite the initial appeal provided that
   the court refrained from taking any action that permitted the judgment
   winner to begin enjoying the fruits of its victory, and, because the second
   judgment of foreclosure was, itself, an appealable judgment, any new
   law days set by the court were stayed until the time to appeal had
   passed and continued to be stayed by virtue of the defendant’s amended
   appeal and, therefore, the automatic stay that may have remained by
   virtue of the initial appeal was not violated by entry of an entirely new
   foreclosure judgment.
           Argued February 6—officially released July 14, 2020

                             Procedural History

   Action to foreclose a mortgage on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of Fairfield
and tried to the court, Hon. Michael Hartmere, judge
trial referee; judgment of strict foreclosure, from which
the defendant appealed; thereafter, the court, Bellis, J.,
vacated the judgment of foreclosure and ordered a new
trial; subsequently, the case was tried to the court, Hon.
George N. Thim, judge trial referee; judgment of strict
foreclosure, from which the defendant filed an amended
appeal. Affirmed.
  John R. Williams, for the appellant (defendant).
  Adam D. Lewis, with whom was Joshua P. Joy, for
the appellee (plaintiff).
                         Opinion

  PRESCOTT, J. In this residential mortgage foreclo-
sure action, the amended appeal of the defendant,
Beagy Francois, challenges the judgment of strict fore-
closure rendered by the court in favor of the plaintiff,
The Bank of New York Mellon FKA The Bank of New
York as Trustee for the Certificate Holder of Cwalt,
Inc., Alternative Loan Trust 2007-J1, Mortgage Pass-
Through Certificates, Series 2007-J1. The defendant’s
sole claim in her amended appeal is that the court
improperly vacated the prior judgment of foreclosure
and subsequently rendered a second judgment of fore-
closure in violation of an existing appellate stay of exe-
cution. We disagree and, accordingly, affirm the judg-
ment of the trial court.
   The record reveals the following relevant procedural
history, which is not in dispute. On November 17, 2015,
the plaintiff commenced the underlying action to fore-
close a mortgage on residential property at 1995 Bar-
num Avenue in Stratford owned by the defendant. A
trial date was set for February 5, 2019. On that date,
the defendant filed a motion seeking a continuance of
the trial date.1 The court, Bellis, J., denied the motion
that same day, indicating in its order that ‘‘[t]his is
the sixth trial date and the case was on the dormancy
docket.’’ The trial began in the afternoon, as scheduled,
but did not finish and was scheduled to resume the
following day.
    On February 6, 2019, however, prior to the resump-
tion of the trial, the defendant filed another motion
seeking a continuance of the trial to May 2, 2019. In
that motion, counsel for the defendant asserted that he
was ‘‘scheduled to be at the Appellate Court for [Docket
No.] AC 42001’’ on February 6, 2019, and, thus, was
unavailable to continue with the foreclosure trial. The
plaintiff did not consent to the continuance, and the
court, Bellis, J., denied the motion later that same day.
The court explained in its order that the Office of the
Appellate Clerk, in response to an inquiry from trial
court staff, had indicated that no proceeding was sched-
uled that day at the Appellate Court in the matter refer-
enced by the defendant’s counsel in her motion for
continuance. Judge Bellis’ order further stated that,
‘‘[i]n light of this second same day trial continuance
and what appears to be a misrepresentation by counsel
that he is ‘scheduled to be in Appellate Court’, the clerk
is directed to send a copy of this order to disciplinary
counsel for the appropriate investigation and action.’’
  Neither the defendant nor her counsel appeared for
the scheduled continuation of the foreclosure trial, and
the court, Hon. Michael Hartmere, judge trial referee,
rendered judgment in favor of the plaintiff.2 The defen-
dant filed an appeal that same day. According to her
appeal form, in addition to appealing from the judgment
of foreclosure, the defendant sought to challenge the
court’s denial of her motions for continuance of the
foreclosure trial, its decision to refer her attorney to
the Office of Chief Disciplinary Counsel, and the denial
of her motion to dismiss.3
  On February 20, 2019, the parties appeared before
Judge Bellis, who indicated to the parties on the record
that, after the February 6, 2019 judgment was rendered,
she learned that a clerk at the Office of the Appellate
Clerk had provided the court with incorrect information
and that the defendant’s counsel, in fact, had been
ordered to appear before the Appellate Court on its
motion docket on February 6, 2019. After confirming
these facts with counsel, the court indicated that it was
withdrawing its disciplinary referral of the defendant’s
counsel and also was vacating the foreclosure judgment
rendered by Judge Hartmere on February 6, 2019. The
court instructed the parties to report to caseflow to
schedule a new trial date.
   A new foreclosure trial was scheduled to begin on
April 10, 2019. Both parties appeared on that date and,
at that time, the defendant raised the issue of whether
the court could proceed with the trial in light of the
fact that the appeal of Judge Hartmere’s prior rulings
remained pending at the Appellate Court. Judge Bellis
rejected the defendant’s assertion that an appellate stay
barred the trial court from proceeding with a new fore-
closure trial.4 The court ordered the trial to proceed as
scheduled before the court, Hon. George N. Thim, judge
trial referee. Following trial, Judge Thim rendered a
new judgment of strict foreclosure in favor of the
plaintiff.5
   On April 22, 2019, the defendant filed an appeal from
Judge Thim’s April 10, 2019 judgment of strict foreclo-
sure. The Office of the Appellate Clerk properly treated
this new appeal as an amendment to the still pending
prior appeal. See Practice Book 61-9 (‘‘[i]f the appellant
files a subsequent appeal from a trial court decision in
a case where there is a pending appeal, the subsequent
appeal shall be treated as an amended appeal’’). The
defendant filed her appellate brief in this matter on
August 26, 2019.
  Before turning to her claim on appeal, it is important
to clarify what the defendant is not claiming and, thus,
what is not before this court on appeal. She does not
brief any claims of error directed at either Judge Hart-
mere’s original judgment of foreclosure or Judge Bellis’
order referring the defendant’s counsel for disciplinary
review, presumably because both of those orders were
vacated after the appeal was filed and before the defen-
dant filed her appellate brief. Because she has aban-
doned her appeal with respect to those rulings, we do
not need to decide whether any issues she might have
raised would be moot and subject to dismissal.
   More significantly, she also does not brief any claim
of error pertaining to Judge Hartmere’s denial of her
motion to dismiss the foreclosure action or Judge Bellis’
denials of her motions for continuance of the trial date.
In other words, even with respect to those orders not
subsequently vacated by Judge Bellis, the defendant
effectively has abandoned and, thus, waived any claims
she might have raised in her initial appeal, choosing
to brief only her amended appeal from Judge Thim’s
judgment of foreclosure.6 See Deutsche Bank National
Trust Co. v. Bertrand, 

140 Conn. App. 646

, 648 n.2, 

59 A.3d 864

(failure to brief claims of error pertaining to
rulings listed on appeal form abandons any such
claims), cert. dismissed, 

309 Conn. 905

, 

68 A.3d 661

(2013); see also Sturman v. Socha, 

191 Conn. 1

, 3 n.2,

463 A.2d 527

(1983) (issue raised in preliminary state-
ment of issues but not pursued in brief deemed
abandoned).
   The defendant has briefed a single claim on appeal,
namely, that the court improperly vacated the prior
judgment of foreclosure7 and rendered a new judgment
of strict foreclosure in violation of the automatic appel-
late stay in effect that arose as a result of her initial
appeal in this matter. We note that the defendant’s dis-
cussion of this novel claim is limited to a scant three
paragraphs, spanning less than one page of her six page
brief. For the reasons that follow, we reject the defen-
dant’s claim.
    Practice Book § 61-11 (a), which governs automatic
stays of execution in non-criminal cases, provides in
relevant part: ‘‘Except where otherwise provided by
statute or other law, proceedings to enforce or carry
out the judgment or order shall be automatically stayed
until the time to file an appeal has expired. If an appeal
is filed, such proceedings shall be stayed until the final
determination of the cause.’’ (Emphasis added.) Thus,
‘‘[i]t 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.
Practice Book § 61-11 (a) and (e).’’ (Emphasis added.)
Sovereign Bank v. Licata, 

178 Conn. App. 82

, 99, 

172 A.3d 1263

(2017).
  As we have clarified in the past, however, ‘‘[i]n this
state, the filing of an appeal does not divest the trial
court of jurisdiction or authority to continue to act in
the matter on appeal. To the contrary, our Supreme
Court has stated on numerous occasions that trial
courts in this state continue to have the power to con-
duct proceedings and to act on motions filed during
the pendency of an appeal provided they take no action
to enforce or carry out a judgment while an appellate
stay is in effect. . . . [Thus] [t]he automatic stay pro-
hibits only those actions that would execute, effectuate,
or give legal effect to all or part of a judgment chal-
lenged on appeal.’’ (Citations omitted; emphasis added;
footnote omitted; internal quotation marks omitted.)
Ruiz v. Victory Properties, LLC, 

180 Conn. App. 818

,
832–33, 

184 A.3d 1254

(2018). In other words, an appel-
late stay of execution ‘‘merely denies [the successful
litigant] the immediate fruits of his or her victory . . .
in order to protect the full and unhampered exercise
of the right to appellate review.’’ (Citation omitted;
internal quotation marks omitted.) Preisner v. Aetna
Casualty & Surety Co., 

203 Conn. 407

, 414, 

525 A.2d 83

(1987).
   Turning to the present case, it is indisputable that an
appellate stay of execution arose by virtue of Judge
Hartmere’s February 6, 2019 judgment of foreclosure
and that the defendant’s appeal from that judgment
acted to extend that stay until there was a final determi-
nation of the appeal or the stay otherwise was termi-
nated. The appellate stay served the important legal
purpose of preventing title to the foreclosed property
from vesting in the plaintiff as a consequence of the
running of any law days set by the court, which could
have no legal effect while an appellate stay remained
operable. See RAL Management, Inc. v. Valley View
Associates, 

278 Conn. 672

, 683, 

899 A.2d 586

(2006). All
of the issues the defendant raised or could have raised
with respect to the initial appeal, however, have been
abandoned by her. What remains for this court to decide
is the limited challenge to the subsequent foreclosure
judgment premised on an alleged violation of the initial
automatic stay that arose as a result of the initial judg-
ment of foreclosure, which has since been vacated, and
the filing of the now abandoned initial appeal.
   The initial appeal filed by the defendant was never
dismissed or otherwise disposed of by this court and,
thus, we agree with the defendant that any appellate
stay of execution resulting from the filing of that appeal
technically continued at the time Judge Bellis vacated
the first judgment of foreclosure and at the time Judge
Thim later rendered his foreclosure judgment.8 We are
unpersuaded, however, that the appellate stay of execu-
tion arising from the vacated first judgment and appeal
was violated under the facts presented.9
   It is well settled that the trial court has the authority
to vacate a judgment on appeal, even if the effect of
such an order is to render any appeal from that judg-
ment moot.10 See

id., 685–92. The

court’s vacatur of the
first judgment could not have violated the appellate
stay because it did nothing to enforce or carry out that
judgment, but, to the benefit of the defendant, merely
returned the parties to the same legal position the par-
ties occupied prior to the rendering of the initial judg-
ment. In other words, the court’s action in vacating
the first judgment constituted the polar opposite of
a ‘‘proceeding to enforce or carryout the judgment.’’
Practice Book § 61-11 (a).
   Similarly, the fact that a new foreclosure judgment
was rendered in favor of the plaintiff did nothing to
execute, effectuate, or give legal effect to any judgment
in contravention of an appellate stay. The court has
continuing jurisdiction to act in an ongoing matter
despite a prior appeal provided that the court refrains
from taking any action that permits the judgment win-
ner to begin enjoying the fruits of its victory. See Pre-
isner v. Aetna Casualty & Surety 

Co., supra

, 

203 Conn. 414

. Because the second judgment of foreclosure was,
itself, an appealable judgment, any new law days set
by the court were stayed until the time to appeal had
passed and continued to be stayed by virtue of the
defendant’s amended appeal. Practice Book § 61-11 (a).
The plaintiff has continued to be denied the fruits of a
foreclosure judgment—namely the transfer of title to
the subject property from the defendant to the plaintiff
upon passage of the law days—and, therefore, whatever
automatic stay may have remained by virtue of the
original appeal, it certainly was not violated by entry
of an entirely new foreclosure judgment.
   Finally, the defendant’s bald statement, made without
any accompanying analysis, that ‘‘this appeal is gov-
erned by [our] recent ruling in Wachovia Mortgage, FSB
v. Toczec, 

189 Conn. App. 812

, 821–24, 

209 A.3d 725

,
[cert. denied, 

333 Conn. 914

, 

216 A.3d 650

] (2019),’’ is
unavailing. The issue in Wachovia Mortgage, FSB, was
whether a trial court’s decision to reset law days that
had passed during the pendency of an appeal challeng-
ing the foreclosure judgment violated the appellate stay
that remained in effect.

Id., 821. The

court in Wachovia
Mortgage, FSB, held that an order resetting law days
with respect to a foreclosure judgment subject to an
appellate stay was an action to carry out or to enforce
the judgment on appeal.

Id., 824. Unlike

in the present
case, the trial court in Wachovia Mortgage, FSB, had
not issued an entirely new foreclosure judgment, but
merely had reset expired law days for the express pur-
pose of permitting title to pass to the plaintiff following
an unsuccessful appeal by the defendant. Because, how-
ever, resolution of a motion for reconsideration en banc
of the Appellate Court’s dismissal of the appeal as frivo-
lous was still pending, this court held that the court’s
resetting of law days was premature and in violation
of the automatic appellate stay, which remained in
effect until the appeal was finally determined, which
included a resolution of the defendant’s motion for
reconsideration.

Id., 823. In

the present case, the court did not simply reset
law days to effectuate a still existing foreclosure judg-
ment but, instead, vacated the prior foreclosure judg-
ment and then later rendered an entirely new judgment,
a necessary component of which was the setting of new
law days. See Connecticut National Bank v. L & R
Realty, 

40 Conn. App. 492

, 494, 

671 A.2d 1315

(1996)
(‘‘Without the setting of law days, the time for redemp-
tion has not been limited and the parties’ rights remain
unconcluded as to that issue. As a result, a strict foreclo-
sure judgment that is silent as to law days cannot be
final for the purpose of appeal.’’). Here, the law days
set by Judge Thim as part of the new judgment of
foreclosure have passed without legal effect due to the
defendant’s having filed the amended appeal. Because
of the unique procedural posture of Wachovia Mort-
gage, FSB, and the fact that, unlike in the present case,
the trial court’s order resetting law days unquestionably
was made solely for the purpose of effectuating a judg-
ment on appeal, whereas here the first judgment on
appeal had been vacated, we disagree that its holding
controls the outcome of the present action.
  The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
      In this opinion the other judges concurred.
  1
     Counsel stated in the motion for continuance that the defendant would
be unable to attend trial because ‘‘[she] had an emergency which caused
her to travel to the Bahamas on February 2, 2019, to care for a family
member who suffered a heart attack. She is currently in the Bahamas caring
for her loved one.’’
   2
     We note that the electronic trial court record does not reflect the terms
of the foreclosure judgment rendered by Judge Hartmere on February 6,
2019, and the defendant did not order a transcript of the proceedings for
our review.
   In addition to the foreclosure judgment, Judge Hartmere also denied,
without explanation, a motion to dismiss that the defendant had filed the
day before, in which she argued that the court lacked jurisdiction over the
foreclosure action because the plaintiff had failed to aver in its complaint
that it had complied with certain statutory notice requirements pursuant to
the emergency mortgage assistance program as provided in General Statutes
§§ 8-265dd and 8-265ee (a).
   3
     In her preliminary statement of issues filed later on March 15, 2019, the
defendant seemingly abandoned any challenge to the court’s denial of her
motions for continuance and to the disciplinary referral, having limited her
issues to the following: ‘‘Did the court err when it denied the defendant/
appellant’s motion to dismiss for lack of subject matter jurisdiction? Did
the court err when it proceeded to a trial within the appeal period after
denying the defendant/appellant’s motion to dismiss for lack of subject juris-
diction?’’
   4
      The plaintiff also raised a concern about the trial moving forward given
the pending appeal. The plaintiff had filed a caseflow request on April 2,
2019, in which it stated that ‘‘the [April 10, 2019] trial was scheduled in
anticipation that the appeal . . . then pending would be withdrawn. On
March 15, 2019, [the] defendant filed additional documents with the Appel-
late Court, preventing the appeal from being dismissed. At this time, the
appeal remains pending and, accordingly, stays this matter pending the
appeal’s dismissal.’’ The court denied the caseflow request without comment
on April 2, 2019.
   The following colloquy occurred at the April 10, 2019 hearing in response to
the court’s indication that the trial could proceed despite the pending appeal:
   ‘‘[The Defendant’s Counsel]: At the time of the filing of the appeal, it was
filed as a result (inaudible) final judgment.
   ‘‘The Court: Right.
   ‘‘[The Defendant’s Counsel]: And I know Your Honor then reopened and
vacated the judgment, however the appeal was already filed and my client
does not want me to withdraw the appeal. I was hoping that the plaintiff
can file a motion to dismiss the appeal and then let the Appellate Court
decide what should happen. But I don’t want to withdraw the appeal and
get in trouble with my client. And there are more than one issue in the—
   ‘‘The Court: All right.
   ‘‘[The Defendant’s Counsel]: —appeal.
   ‘‘The Court: Counsel, I think this whole problem was created by your
failure to handle your scheduling issues with last minute continuances and
such. But right now there’s no final judgment in this case, so as far as I’m
concerned, this would be—there’s nothing that would be—stop this trial
from going forward as I indicated in the caseflow request. So [the] plaintiff
goes forward with the trial today.
   ‘‘[Counsel], you have an appearance in the case, so you are ordered to
be here for the trial. If your client does—instructs you not to participate
or not to say anything, I can’t—
   ‘‘[The Defendant’s Counsel]: No, I—I will do the trial. I just think this
may give rise to another appellate . . . issue.’’
   5
     The court determined that the fair market value of the property was
$289,000 and calculated that the outstanding total debt, including attorney’s
fees, was $676,502.35. The court set laws days to commence on June 11, 2019.
   6
     She does not raise or brief any claim of error with respect to the merits
of the foreclosure judgment rendered by Judge Thim, claiming only that, in
light of an appellate stay of execution that arose when the initial appeal
was filed, the court lacked the authority to vacate the judgment of foreclosure
and, ultimately, render a new judgment of foreclosure.
   7
     Although the defendant’s claim on appeal focuses on the authority of
the trial court to render the second judgment of foreclosure, we interpret
her claim, as a matter of logic, to also challenge implicitly the authority of
the trial court to vacate the first judgment of foreclosure.
   8
     We disagree with the plaintiff’s assertion that Judge Bellis necessarily
terminated any appellate stay that was in effect as a consequence of her
having vacated the foreclosure judgment rendered by Judge Hartmere. An
automatic appellate stay may be terminated by the trial court either on a
motion by a party pursuant to Practice Book § 61-11 (e) or, sua sponte, in
accordance with Practice Book § 61-11 (d). In either instance, however, the
court ‘‘shall hold a hearing prior to terminating the stay.’’ Practice Book
§ 61-11 (d). No motion to terminate the stay was ever filed with the trial
court. The court never indicated any intent to terminate the appellate stay
as part of her ruling vacating the foreclosure judgment. Rather, the court
simply indicated that conducting a new foreclosure trial would not violate
the existing appellate stay. The court never held a hearing or heard argument
from the parties about whether to terminate the appellate stay, which is
mandatory before a trial court may terminate any appellate stay of execution.
Here, the proper inquiry is not whether any appellate stay remained in
effect, but whether the trial court’s actions violated the scope of any stay
in existence.
   9
     It is important to note that the defendant’s exercise of her right to
appellate review of the new foreclosure judgment prevented the passing of
title from the defendant to the plaintiff as a result of the running of the new
law days set by Judge Thim, thereby preserving for all practical purposes
the legal protection afforded by the earlier stay.
   10
      It is unnecessary to resolve any portion of the appeal as amended on
mootness grounds. As we previously indicated, any issues that could have
been raised with respect to the initial appeal with respect to Judge Hart-
mere’s now vacated foreclosure judgment have been abandoned by the
defendant. In the initial appeal, the defendant also challenged Judge Hart-
mere’s denial of her motion to dismiss the foreclosure action, a decision
that was not vacated by the trial court, and the defendant has abandoned
any claim regarding the denial of that motion by failing to brief it.

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