Opinion
No. CV02 0077108S
August 8, 2003
MEMORANDUM OF DECISION RE MOTIONS TO LIFT AUTOMATIC STAY (#184, #186 AND #189)
On February 7, 2002, the plaintiff, Daniel Presnick, filed an application for an order to show cause accompanied by a two-count complaint. In count one of the complaint, the plaintiff sought an order of mandamus to compel the defendant, Mitch Goldblatt, acting in his capacity as first selectman of the town of Orange, to appoint a new town counsel. In count two, the plaintiff sought damages for misappropriation. Count two alleged that upon information and belief, Goldblatt used the services of the town attorney for his personal benefit and that the town of Orange was billed and paid for the legal services. On April 1, 2002, the defendant filed an answer and special defenses.
On April 4, 2002, the plaintiff filed a motion for summary judgment on count one. On April 22, 2002, the defendant filed an objection and cross motion for summary judgment on the same count. On July 26, 2002, the court, Moran, J., granted the plaintiff's motion for summary judgment and denied the defendant's cross motion. On August 12, 2002, the defendant filed a motion to reargue. The court, however, denied the motion on August 13, 2002.
The plaintiff filed a motion to lift the automatic stay on August 5, 2002, and an alternative motion to lift the automatic stay on September 19, 2002. On December 10, 2003, however, this court held that these motions were rendered moot by the Appellate Court's dismissal of the defendant's appeal.
On September 3, 2002, the defendant appealed the court's decision. On December 3, 2002, the Appellate Court dismissed the appeal as a judgment had yet to be rendered on count two of the complaint.
After the Appellate Court dismissed the appeal, the defendant filed a motion for reconsideration, which was denied on December 16, 2002. The defendant then filed a petition for certification to the Supreme Court, which was denied on February 5, 2003. Because certification was denied, the plaintiff's motion to lift the automatic stay, dated January 14, 2003, is moot.
Thus, on December 23, 2002, the defendant filed a motion for summary judgment on count two of the plaintiff's complaint. On January 13, 2003, the plaintiff filed an objection to the defendant's motion for summary judgment. On February 13, 2003, the court, Alander, J., granted the defendant's motion for summary judgment as to count two.
Having received a final judgment on both counts of the complaint, the defendant appealed this court decision granting the plaintiff's motion for summary judgment as to count one. This appeal was filed on February CT Page 8894-bv 20, 2003 and is currently pending in the Appellate Court.
The defendant filed an identical appeal on April 25, 2003.
The plaintiff has since filed numerous motions to lift the automatic stay imposed by the defendant's appeal. The subject motions were filed on April 15, 2003; April 25, 2003; and June 6, 2003. The plaintiff moves on the ground that: 1) defendant's appeal will likely fail; 2) irreparable injury will be done to the citizens of the town of Orange; and 3) the town will suffer no harm as a result of the implementation of this ruling.
The defendant filed corresponding objections to the aforementioned motions on April 21, 2003; May 8, 2003; and June 16, 2003. The defendant objects on the ground that: 1) the defendant's appeal is not frivolous; 2) the defendant's appeal remains pending as it was timely filed on February 20, 2003 and no ruling has been made; 3) the plaintiff is not faced with irreparable harm because of the stay, and the defendant will suffer irreparable harm if the stay is terminated; and 4) there are no third parties to the proceeding that could be adversely affected by the stay.
Practice Book § 61-11(a) provides in relevant part: "Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order appealed from shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause." Nevertheless, Practice Book § 61-11(c) provides: "If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken only for delay or (2) the due administration of justice so requires, the judge may at any time, upon motion and hearing or sua sponte, order that the stay be terminated."
"It is within the trial court's discretion to determine whether due administration of justice warrants the termination of a stay of execution . . . [O]f consequence is the fact that a stay of execution denies a party successful on the underlying judgment the immediate fruits of victory." LaSalle National Bank v. Shook, Superior Court, judicial district of New London, Docket No. 549266 (March 28, 2001, Hurley, J.) ( 29 Conn.L.Rptr. 462)."Principles pertinent to the due administration of justice include: (1) the likelihood that the defendant will prevail on appeal (2) the irreparability of the injury to be suffered from the execution of the judgment; (3) the effect of the stay upon the other parties to the proceedings; and (4) the public interest involved." (Internal quotation marks omitted.) Pospisil v. Pospisil, Superior Court, judicial district of Tolland at Rockville, Docket No. 054011 (Feb. 26, 1999, Zarella, J.), citing Griffin Hospital v. Commission on CT Page 8894-bw Hospitals, 196 Conn. 451, 456-58, 493 A.2d 229 (1985).
With respect to the third factor, the plaintiff is the only party to this action. Thus, the stay would have no effect on other parties to the proceedings. With respect to the fourth factor, the public interest will not be greatly affected by the imposition of the stay. Brian Stone, the current town attorney, would stay in office until the appeal was decided, and thus, the citizens of the town of Orange would not be deprived of a town attorney during the pendency of the appeal. Thus, the plaintiff has failed to demonstrate that due administration of justice warrants the lifting of the stay imposed by § 61-11(a).
The plaintiff has also failed to follow the procedural requirements for filing a motion to terminate the stay. Practice Book § 61-11(d) provides in part: "If . . . a motion [to terminate a stay] is filed before judgment, or after judgment but before an appeal, it shall be filed in triplicate with the clerk of the superior court. If it is filed after an appeal is filed, an original and three copies shall be filed with the appellate clerk, who shall forward the motion to the judge who tried the case." The present motions were each filed after the defendant filed his appeal. Nevertheless, the plaintiff filed the present motions in the superior court rather than the appellate court as required by § 61-11(d). Furthermore, the plaintiff did not file three copies of each motion as required by that section.
For the foregoing reasons the plaintiff's motions to lift the automatic stay are denied.
The Court
Moran, J.