Bank of N.Y. Mellon v. Francois

198 Conn.App. 885

234 A.3d 1089

The BANK OF NEW YORK MELLON, Trustee

v.Beagy FRANCOIS

AC 42573

Appellate Court of Connecticut.

Argued February 6, 2020

Officially released July 14, 2020

John R. Williams, New Haven, for the appellant (defendant).

Adam D. Lewis, with whom was Joshua P. Joy, for the appellee (plaintiff).

Prescott, Devlin and Sheldon, Js.

PRESCOTT, J.

In this residential mortgage foreclosure action, the amended appeal of the defendant, Beagy Francois, challenges the judgment of strict foreclosure 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 foreclosure in violation of an existing appellate stay of execution. We disagree and, accordingly, affirm the judgment 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 foreclose a mortgage on residential property at 1995 Barnum 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 resumption 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 scheduled that day at the Appellate Court in the matter referenced 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 defendant 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 foreclosure 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 foreclosure. 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 Hartmere'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 defendant filed her appellate brief. Because she has abandoned 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 statement 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 appellate stay in effect that arose as a result of her initial appeal in this matter. We note that the defendant's discussion 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 defendant'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 appellate 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 conduct 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 prohibits only those actions that would execute, effectuate, or give legal effect to all or part of a judgment challenged 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 appellate 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 determination of the appeal or the stay otherwise was terminated. The appellate stay served the important legal purpose of preventing title to the foreclosed property from vesting in the...