Deutsche Bank Nat'l Tr. Co. v. Speer

315 A.3d 1154

225 Conn.App. 439

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee

v.Sheri A. SPEER et al.

(AC 46046)

Appellate Court of Connecticut.

Argued February 1, 2024

Officially Released May 14, 2024

Sheri A. Speer, self-represented, the appellant (named defendant).

Victoria L. Forcella, Hartford, for the appellee (plaintiff).

Bright, C. J., and Elgo and Sheldon, Js.

SHELDON, J.

Following the unconditional withdrawal of this foreclosure action by the plaintiff,¹ Deutsche Bank National Trust Company, as trustee for HSI Asset Securitization Corporation Trust 2006-OPT4, Mortgage Pass-Through Certificates, Series 2006-OPT4, the defendant Sheri A. Speer² appeals from the trial court’s decisions sustaining the plaintiff’s objections to the defendant’s two prior requests for leave to amend her answer to assert a counterclaim. On appeal, the defendant claims that the court abused its discretion in sustaining the plaintiff’s objections because her proposed amend- ments were timely and would not have prejudiced the plaintiff. We disagree with the defendant’s claims of error and, accordingly, affirm the trial court’s decisions sustaining the plaintiff’s objections to the requests for leave to amend.

The following procedural history is relevant to this appeal. On March 20, 2019, the plaintiff served the defendant with a summons and complaint, seeking to foreclose a mortgage on a parcel of real property owned by the defendant located at 107 Oakridge Street in Norwich (property). In its complaint, the plaintiff alleged that the defendant had executed and delivered to Option One Mortgage Corporation, its predecessor in interest, a note in the amount of $159,800, of which the plaintiff ₄₄₂became the holder, secured by a mortgage on the property. The plaintiff further alleged that the note and mortgage were in default due to the defendant's nonpayment of monthly installments due thereunder since June 1, 2018. On March 20, 2020, the self-represented defendant filed an answer to the plaintiff’s complaint and asserted ten special defenses.

On January 25, 2021, the defendant filed a request for leave to amend her answer and special defenses to include a five count counterclaim, to which she attached a copy of her proposed amended pleading. The proposed five count counterclaim sought damages for (1) property damage, (2) trespass, (3) fraud, (4) conversion and civil theft, and (5) a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The alleged factual basis for the defendant’s counterclaim was that agents of the plaintiff had forcibly entered the property on at least fifty occasions, most recently on December 23, 2020. The defendant alleged that the plaintiff’s agents had, among other things, broken a door to the property, taken certain construction materials from it, and replaced its locks, all of which interfered with her ability to rent and repair the property.

The plaintiff filed an objection to the defendant’s request for leave to amend, arguing that the defendant’s allegations were unfounded and that the defendant had failed to show good cause to allow an amendment at that stage of the proceedings, approximately two years after the action had been commenced, where the counterclaim was not made on the basis of new information. The court issued an order on February 22, 2021, sustaining the plaintiff’s objection, thereby denying the defendant’s request to amend. The defendant subsequently filed a motion for reconsideration, which the court denied.

₄₄₃On June 9, 2021, the defendant filed a second request for leave to amend her answer. The proposed amended answer attached to that request included a counterclaim setting forth the same five counts as the defendant’s first proposed counterclaim, with only one additional factual allegation: that the plaintiff’s agents had again trespassed on the property on or about May 26, 2021. The plaintiff filed an objection to the defendant’s second request for leave to amend, arguing that that request was nearly identical to her first such request and, thus, that it should be denied for the same reasons as the first request. By order dated June 28, 2021, the court sustained the plaintiff’s objection to the defendant’s second request for leave to amend, thereby denying that request. The plaintiff subsequently withdrew the foreclosure action. This appeal followed.

After filing the present appeal, the defendant filed a motion for articulation requesting an explanation from the trial court for its denial of both of her requests for leave to amend, which the court denied.³ The defendant subsequently filed with this court a motion for review of the denial of her motion for articulation. This court granted the defendant’s motion for review but denied the relief requested therein.

I

[2–6] Before we address the merits of the defendant’s claim on appeal, we must address the plaintiff’s claim that we should dismiss this appeal as moot. Specifically, the plaintiff, relying on Sovereign Bank v. Harrison, 184 Conn. App. 436, 194 A.3d 1284 (2018), claims that, because it withdrew the underlying foreclosure action before any counterclaim had been filed against it, no ₄₄₄practical relief can now be afforded to the defendant on the basis of any such unfiled claim. "Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties." (Internal quotation marks omitted.) GMAT Legal Title Trust 2014-1 v. Catale, 213 Conn. App. 674, 694, 278 A.3d 1057, cert. denied, 345 Conn. 905, 282 A.3d 980 (2022). "[M]ootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve before we may reach the merits of an appeal. … It is a [well settled] general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. … An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal." (Citation omitted; internal quotation marks omitted.) CT Freedom Alliance, LLC v. Dept. of Education, 346 Conn. 1, 12, 287 A.3d 557 (2023).

[7] In the present case, we conclude that the appeal is not moot because, although the plaintiff withdrew its foreclosure action, this court could provide practical relief to the defendant if it decided her claim on the merits. Specifically, if this court determined that the defendant should have been permitted to file her proposed counterclaim, it could remand this case to the trial court with direction to restore the case to the docket and conduct further proceedings with respect to the defendant’s proposed counterclaim. "Although the plaintiff’s right … to withdraw [its] action before a hearing on the merits … is absolute and unconditional … such withdrawal in no way impairs the right of the defendant to prosecute a previously filed counterclaim." (Citation omitted; emphasis in original; internal ₄₄₅quotation marks omitted.) Sovereign Bank v. Harrison, supra, 184 Conn. App. at 442–43, 194 A.3d 1284; see also Practice Book § 10–55 ("[t]he withdrawal of an action after a counterclaim, whether for legal or equitable relief, has been filed therein shall not impair the right of the defendant to prosecute such counterclaim as fully as if said action had not been withdrawn, provided that the defendant shall, if required by the judicial authority, give bond to pay costs as in civil actions").

The plaintiff’s reliance on Sovereign Bank v. Harrison, supra, 184 Conn. App. 436, 194 A.3d 1284, to support its position is misplaced. In Sovereign Bank, the issue was whether the trial court erred in interpreting the defendant’s special defense as a counterclaim and, therefore, lacked the authority to restore that claim to the docket following the plaintiff’s voluntary with- drawal of its action. Id., at 438, 194 A.3d 1284, This court’s resolution of that issue turned on the differences between special defenses and counterclaims. Id., at 444–46, 194 A.3d 1284. Ultimately, this court determined that the defendant’s special defense "[could not] reasonably be construed as stating an independent cause of action, and, therefore, the trial court erred in construing it as a counterclaim. Because there was no pending counterclaim as of the date of the withdrawal, the court lacked the authority to restore the case to the docket." Id., at 447, 194 A.3d 1284. In contrast to Sovereign Bank, it is undisputed that the defendant in the present case sought to amend her answer to assert a counterclaim, as opposed to a special defense.⁴ Although the defendant’s proposed counterclaims were not yet filed or pending when this action was withdrawn—because the court had effectively denied her requests for leave to amend her answer to assert the proposed counterclaims when it sustained the plaintiff’s objections to her requests for leave to ₄₄₆amend—the fact remains that the plaintiff’s withdrawal would not have impaired her right to proceed with those proposed counterclaims had she otherwise been permitted to file them. See id. Accordingly, we proceed to the merits of the defendant’s appeal.

II

[8] The defendant claims that the court abused its discretion in sustaining the plaintiff’s objections to her requests for leave to amend her answer because each claim in her proposed counterclaim was timely asserted and no such claim would have prejudiced the plaintiff. We disagree.

[9] Pursuant to General Statutes § 52-130, "a party, as a matter of right, may make substantive amendments to any pleading. That right is subject only to the court’s discretion to award costs or to limit an amendment if doing so is necessary to prevent undue delay of a trial." (Emphasis omitted.) Ocwen...