Opinion
BPHCV196007233S
11-18-2019
Jane Scofield, as Executrix v. Todd C. Scofield et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Spader, Walter M., J.
MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION TO TERMINATE ANY APPELLATE STAYS OF EXECUTION AND DEFENDANTS’ MOTION TO DISMISS AND AUDITA QUERELA
WALTER M. SPADER, JR., Judge.
The primary matter before the Court is the plaintiff’s motion to terminate any appellate stays of execution pursuant to Connecticut Practice Book § 61-11(d) following the defendants’ filing of an appeal, on the grounds that the defendants’ appeal was taken only for delay and that the due administration of justice and equity so requires. The Court held a hearing on the plaintiff’s motion and the defendants’ oral objection thereto on November 15, 2019. Prior to the hearing, the defendants filed a third motion to dismiss which also contained a request for relief in the form of an audita querela.
Defendants are referred to in the plural even though the appeal pleadings and recently filed motions are only in the name of Todd Scofield. Although both appeared, his brother, Tyler Scofield, argued the motions before this Court. Tyler is an attorney admitted to practice in Texas. Plaintiff’s counsel asked this Court to prevent him from arguing Todd’s positions at this Hearing, but the Court overruled that request.
Factual Background and Procedural Context
The Court summarizes the history of this case, as follows.
This summary process action regarding 546 Riverdale Drive in Stratford was commenced with a notice to quit dated April 26, 2019 followed by a writ, summons and complaint returnable to this Court on May 15, 2019. This action followed probate proceedings which ultimately resulted in a probate order that rent be paid by Todd Scofield to the estate. This action alleged nonpayment of that rent and other claims implicating possession. Following the denial of the first motion to dismiss (alleging the existence of a probate stay on appeal), a final stay stipulation was entered into between the plaintiff and Todd Scofield on June 5, 2019. The stipulation only had judgment enter on the basis of "right or privilege terminated" and a final stay was set through September 30, 2019. Todd Scofield’s stipulation indicated he would not file any motions to open the judgment, he would not appeal the judgment, and he would not request any further stays.
The Court defaulted Tyler Scofield for failing to appear at trial and, on June 6, 2019, defaulted Christine and Bryce Scofield for failing to file appearances in this matter. On September 25, 2019, the Court denied a motion to open (Docket Entries #112 as amended by #116), and the second motion to dismiss (Docket Entry #118). On September 27, 2019, the Court denied an application for further stay (Docket Entry #122). This appeal followed on October 3, 2019.
There is No Stay of Execution in Effect
As a preliminary matter, the Court will note that while the plaintiff has moved for this termination of stay, this motion is unnecessary, as there currently is no stay in effect . The defendants’ notice of appeal incorrectly advises the Appellate Court that the date of judgment was September 27, 2019. The dates of Judgment were June 5, 2019 (as to Todd & Tyler Scofield) and June 6, 2019 (as to Christine & Bryce Scofield).
Connecticut General Statute § 47-35 provides, in toto :
Sec. 47a-35. (Formerly Sec. 52-542). Stay of execution. Appeal. (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.
The judgments were not appealed within five days of their entries, and Todd Scofield (the appellant) agreed not to file a motion to open the judgment or file a request for further stay. This appeal arises from the Court’s denial of the motion to open, the motion to dismiss and denial of the request for further stay from September 25 & 27, 2019.
"[T]he filing of such a motion [to open a judgment of possession] does not stay execution of the judgment because the legislature has expressly provided, in detail, rules controlling the issuance and the extent of stays in summary process cases." Maccio v. Hundley, 36 Conn.Sup., 623, 625-26 (Appellate Session of the Superior Court, 1980). The Appellate Court in Lopez v. Livingston, 53 Conn.App. 622, fn.1 (1999), has adopted the reasoning in Maccio as it relates to appellate periods and motions to open.
While the motion to open can be considered on appeal, there is no stay afforded statutorily to appeals from motions to open. "It is well established that the right to appeal is purely statutory and is accorded only if the condition’s fixed by statute are met." Gold v. Newman, 211 Conn. 631, 634 (1989). "[A]ppeals in summary [process] proceedings are governed by statutes specifically relating thereto rather than by statutes relating to appeals generally." Housing Authority of the City of Waterbury v. Bond, 30 Conn.Supp. 580, 582 (1973). The only stay of execution provided for in the summary process statutes is the five-day stay of execution from the initial judgment. See Connecticut General Statute § 47a-35.
No defendant in this matter filed a timely appeal from the judgment in June. An execution, therefore, properly issued on September 25, 2019 and the filing of, denial of, and appeal of the motion to open judgment did not create a statutory appellate stay of the use of that execution.
Additionally, a denial of a request for stay of execution cannot be the subject of a direct appeal. Pursuant to Connecticut Practice Book § 61-14, the denial of a request for further stay of execution must be brought to the Appellate Court through a motion for review, not a direct appeal.
Applicable Law as to Terminations of Stay, Generally
With regard to stays pending appeal and requests to terminate stays, the Rules of Appellate Procedure provide, in toto, as follows:
In all cases not governed by subsection (c), termination of a stay may be sought in accordance with subsection (e) of this rule. If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is filed, only for delay, or (2) the due administration of justice so requires, the judge may at any time, upon motion or sua sponte, order that the stay be terminated. Whether acting on a motion of a party or sua sponte, the judge shall hold a hearing prior to terminating the stay.
Connecticut Practice Book § 61-11(d).
Connecticut General Statute § 47a-35 also provides that a summary process stay only stands "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."
Rulings affecting stays relating to summary process matters are guided by a "balancing of the equities" test, wherein the Court must consider factors such as (1) the likelihood that the appellant will prevail; (2) the irreparability of the injury to be suffered from immediate implementation of the judgment; (3) the effect of a stay upon other parties to the proceeding; and (4) the public interest involved. See Connecticut Bank & Trust Co. v. Winters, 26 Conn.App. 317 (1991), and Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451 (1985).
Analysis of Facts and Law
In weighing the factors of this case, the record, the evidence, and the totality of the circumstances, the Court is persuaded that, under Connecticut Practice Book § 61-11(d), Connecticut General Statute § 47a-35 and/or the Griffin Hospital test, jointly and independently, any stay that was or may be created in the future should be terminated.
First, the Court believes that it is highly unlikely that the defendants will prevail on appeal. The Court has again reviewed its rulings and the Court does not find the defendants’ arguments compelling. While the outcome of litigation can never be accurately predicted, the Court firmly believes that its denial of the motion to open was sound and the motion was not filed in good faith. Most importantly, Todd Scofield proactively agreed not to file a motion to open when judgment entered. The denial of the motion to dismiss contained rehashed standing arguments- that were raised yet again at the hearing on this motion. And the request for further stay was properly denied as the defendant had enjoyed time from a stay from the stipulation he was now attempting to open. The Court found the defendant’s allegations meritless.
"Although challenges to subject matter jurisdiction may be raised at any time, it is well settled that [f]inal judgments are ... presumptively valid ... and collateral attacks on their validity are disfavored. The reason for the rule against collateral attack is well stated in these words: The law aims to invest judicial transactions with the utmost permanency consistent with justice ... Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown. (Internal quotations and citations omitted.)" Sousa v. Sousa, 322 Conn. 757, 771 (2016).
Judgment in this matter was final, and the defendant is now attempting a collateral attack on that final judgment, which the Court will not entertain.
On the second Griffin Hospital factor, there is no irreparable injury to the defendants. The probate court made final orders in its matter that were not timely appealed. The defendant filed for review of the probate orders in the Superior Court, which claims were dismissed on the motion of the plaintiff herein. He has since appealed the Superior Court dismissal and alleges that his appeal somehow creates a stay of the probate orders from which there never was an initial stay. It is the ultimate bootstrapping argument, but treads on a flimsy ground of no supporting law. There still is no probate stay in effect nor was one created by that appeal . The probate court determined that rent should be paid- it has not been, Todd Scofield has been living in the premises without contributing to taxes or providing use and occupancy payments: The probate court adjudicated the rights of the parties and the Superior Court dismissed the probate appeal. Even if the Appellate Court remands the motion to dismiss back to the Superior Court, the defendant can continue his fight, but he has no right to possession of the premises during that litigation.
The plaintiff in this matter was the defendant in the Superior Court appeal filed by the defendants herein.
Finally, the evidence of dilatory proceedings is ripe in this file. Even before this motion was heard, the defendant filed his third motion to dismiss. After a fully canvassed stipulation, the defendant agreed not to file any motions to open, appeals or requests to stay the execution. He did all three. As a jurisdictional matter, the defendants have also not complied with Connecticut General Statute § 47a-35a by filing for a use and occupancy order within five days of the filing of this appeal, further demonstrating the lack of good faith in the appeal and that it was filed solely for the purposes of delay. Compliance with Connecticut General Statute § 47a-35a is mandatory. The statute imposes upon the defendants "an affirmative duty to initiate the security process." City of Norwich v. Shelby-Posello, 140 Conn.App. 383, 392 (2012). Failure of a defendant to either (1) post a bond, (2) file a motion to set bond, or (3) move for use and occupancy payments, within the time allowed voids an appeal.
Conclusion as to Termination of Stay
For all of these reasons, the Court finds that a stay never attached to this appeal in the first place. To the extent that the plaintiff seeks a termination of any potential stay, the Court finds unequivocally that the present appeal was taken solely for the purpose of delay and, as it is an appeal solely, of a denial of a motion to open and denial of a request for further stay of execution, it has an extremely low likelihood of success. The due administration of justice and the principles of equity require immediate termination of any potential appellate stays. Accordingly, this Court grants the plaintiff’s motion to terminate any stay that may exist, or which may arise in the future due to any future appeals filed in this case.
The Defendant’s Third Motion to Dismiss
The defendant, Todd Scofield, also filed an additional motion to dismiss and request for audita querela relief for the hearing on this motion (Docket Entry #126). The defendant claims that somehow the granting of the plaintiff’s motion to dismiss in the Superior Court appeal calls into question the probate court orders because he appealed the motion to dismiss and an automatic stay attaches to that appeal. By extension, while there previously was not stay of the probate court orders, because there is now an appeal of the dismissed appeal, the stay from the dismissal appeal creates a stay of the probate. orders. Ultimately, the defendant claims, because he filed the appeal, the plaintiff does not have standing to pursue this housing action.
This argument is non-sensical. The Superior Court’s judgment, in reality, further bolsters the plaintiff’s arguments here that the probate court orders are in effect.
The defendant, this morning, filed a reply to plaintiff’s objection to his motion to dismiss (Docket Entry #129.00) citing cases where probate appeals were taken and, he claims, created stays. He cites, for example, Burnell v. Chorches, 173 Conn.App. 788 (2017) and Connery v. Grieske, 323 Conn. 377 (2016). This late filing does not persuade this Court to dismiss this housing matter. This Court has found, on multiple occasions, that it has jurisdiction in this matter and that has not changed.
The issue decided by the Superior Court in the Superior Court appeal was a motion to dismiss. All that is stayed by the appeal is the order on the motion to dismiss. If the judgment is affirmed, the order stands and the case is dismissed. If the judgment is overruled, the motion to dismiss may be denied and the case continues. At no point did a stay exist in the probate file, nor was one created by the Superior Court. The appeal relates to the ruling on a dispositive motion, but all that is stayed is the enforcement of that motion’s ruling (to terminate the case).
As the Court continues to find jurisdiction for the plaintiff, the defendants’ motion to dismiss is denied.
Request for Audita Querela Relief
"Audita Querela is a remedy granted in favor of one against whom execution has issued or is about to issue on a judgment, the enforcement of which would be contrary to justice." Housing Authority v. Melanson, 23 Conn.App. 519, 519, n.1 (1990). As noted by the Appellate Court in Oakland Heights Mobile Park, Inc. v Simon, 40 Conn.App. 30 (1995), in footnote 1, "Audita Querela is a common-law writ that may be granted when a defense to a judgment arises for the first time after the judgment has been rendered."
The defendant has not established how the enforcement of the execution in this matter is contrary to justice nor has a defense to that judgment arisen since the judgment has been rendered. The only intervening incident since the judgment is the Superior Court’s dismissing his probate appeal. If anything, that only further supports the plaintiff’s case herein.
The request for injunctive relief is, accordingly, also denied.