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Samsel v. Parks
JOZEF SAMSEL v. WILLIAM PARKS
(AC 47018)
Bright, C. J., and Moll and Cradle, Js.
Syllabus
The defendant appealed from the trial court’s denial of his motion to open
the judgment of possession rendered for the plaintiff in this summary process
action. The defendant claimed that the trial court improperly denied his
motion to open. Held:
The defendant’s appeal was dismissed as moot because he was no longer
in possession of the subject property, and he failed to demonstrate that any
recognized exception to the mootness doctrine applied.
Submitted on briefs September 20—officially released October 8, 2024
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of New Haven, Housing
Session at Meriden, where the court, Hon. John F. Cronan, judge trial referee, rendered judgment of possession for the plaintiff; thereafter, the court, Hon. John
F. Cronan, judge trial referee, denied the defendant’s
motion to open the judgment, and the defendant
appealed to this court. Appeal dismissed.
David E. Rosenberg filed a brief for the appellant
(defendant).
Opinion
PER CURIAM. In this summary process action, the
defendant, William Parks, appeals from the judgment
of the trial court denying his motion to open the judgment of possession in favor of the plaintiff, Jozef Samsel. On appeal, the defendant claims that the court
improperly denied his motion to open the judgment.
We dismiss the defendant’s appeal as moot.
The record reflects the following undisputed facts.
The plaintiff owns the premises located at 421 E. Mitchell Avenue in Cheshire (premises). The parties executed
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Samsel v. Parks
a written lease agreement pursuant to which the defendant agreed to rent the premises. On August 1, 2023,
the plaintiff served the defendant with a notice to quit
possession, which stated that the defendant’s lease was
terminated due to, inter alia, nonpayment of rent, and
ordered him to vacate the premises by August 31, 2023.
On September 10, 2023, the plaintiff served the defendant with a summary process summons and complaint
with a return date of September 19, 2023, which was
filed on September 13, 2023. On September 25, 2023,
after the defendant failed to file an appearance within
the time allotted, the plaintiff filed a motion for judgment for failure to appear pursuant to General Statutes
§ 47a-26. The trial court granted the motion and rendered judgment for the plaintiff for immediate possession of the premises on Monday, October 2, 2023.
In accordance with General Statutes § 47a-35,1 the
automatic stay of the judgment expired on Monday,
October 9, 2023, and counsel for the defendant filed an
appearance and a motion to open and vacate judgment
on October 10, 2023.2 In that motion, counsel for the
defendant stated that the defendant had ‘‘just engaged’’
counsel and that he ‘‘is an elderly, unsophisticated
party’’ who did not understand that the underlying
action was different from a prior action filed by the
1
General Statutes § 47a-35 provides in relevant part: ‘‘(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 . . . . If
execution has not been stayed, as provided in this subsection, execution
may then issue . . . .’’
2
The filing of ‘‘the motion to open . . . outside of the five day statutory
appeal period from the judgment of possession’’ does not stay execution of
the judgment. (Emphasis in original.) Atlantic St. Heritage Associates, LLC
v. Bologna, 204 Conn. App. 163, 170,
252 A.3d 881 (2021).
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Samsel v. Parks
plaintiff and was ‘‘unaware of the significance of the
filing of the plaintiff’s motion for default’’ until he
received the notice of judgment.
Also on October 10, 2023, the plaintiff filed an objection to the defendant’s motion to open. In that objection,
the plaintiff asserted that ‘‘the prior action to which [the
defendant] is referring was withdrawn . . . on May 20,
2023. . . . The defendant has already gone through an
eviction process . . . [in which] he again failed to
appear and then filed a motion to open in response to
the plaintiff’s motion for default. . . . In [that] motion
to open . . . [the defendant] made the identical claim
[that he is] ‘elderly and unsophisticated’ and ‘unaware
of the significance of the filing of the plaintiff’s motion
for default.’ . . . Like in the former action, [the defendant] now has again chosen to fail to appear and has
claimed thereafter to be unaware of the significance of
the motion for default for failure to appear.’’
On October 11, 2023, the court denied the defendant’s
motion to open and sustained the plaintiff’s objection
thereto without elaboration. On October 17, 2023, the
defendant filed a motion to reargue, requesting that the
court allow reargument and/or reconsideration of the
denial of his motion to open or, in the alternative, that
the court articulate the reasoning for its decision. The
plaintiff filed an objection to the defendant’s motion
the following day, and the court denied the motion to
reargue on October 19, 2023, again without elaboration.
The defendant filed the present appeal on October
23, 2023.
On October 27, 2023, the plaintiff filed a motion to
terminate stay with the Office of the Appellate Clerk,
which forwarded the motion to the trial court for a
hearing and decision pursuant to Practice Book § 61-
11 (e). The defendant filed an objection to the motion
on November 20, 2023, and the trial court held a hearing
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Samsel v. Parks
on the motion on the same day. In a memorandum of
decision dated November 27, 2023, the court granted
the motion to terminate stay.3 The defendant did not
seek review of that decision pursuant to Practice Book
§ 66-6,4 and an execution for possession of the premises
issued on December 20, 2023.5 A state marshal performed the eviction on December 26, 2023, and returned
the satisfied execution to the court on December 27,
2023.
‘‘This court has consistently held that an appeal from
a summary process judgment becomes moot where, at
the time of the appeal, the defendant is no longer in
possession of the premises.’’ (Internal quotation marks
omitted.) Friedman v. Gomez, 172 Conn. App. 254, 260,
159 A.3d 703 (2017). ‘‘Mootness is a question of justiciability that must be determined as a threshold matter
because it implicates this court’s subject matter jurisdiction. . . . An actual controversy must exist not only
at the time the appeal is taken, but also throughout the
pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude
an appellate court from granting any practical relief
3
Given that the defendant’s motion to open was filed outside of the
statutory appeal period, it appears that there was no stay in place for the
court to terminate. See footnote 2 of this opinion. Nevertheless, it is irrelevant
to our mootness analysis whether the defendant was evicted because no
stay existed or because the court terminated the stay.
4
Practice Book § 66-6 provides in relevant part: ‘‘(a) The court may, on
written motion for review stating the grounds for the relief sought, modify
or vacate . . . (4) any order made by the trial court concerning a stay of
execution in a case on appeal . . . .’’
Pursuant to Practice Book § 61-14, ‘‘[t]he sole remedy of any party desiring
the court to review an order concerning a stay of execution shall be by
motion for review under Section 66-6.’’
5
The defendant filed an application for an ex parte temporary injunction
and a motion to quash execution (writ of audita querela) on December 26,
2023, which were denied by the court that same day. On December 27, 2023,
the defendant filed a motion to reargue/reconsider the denial of his writ of
audita querela, which the court denied ‘‘as moot, the judgment having been
executed.’’
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Samsel v. Parks
through its disposition of the merits, a case has become
moot.’’ (Citations omitted; internal quotation marks
omitted.) Renaissance Management Co. v. Barnes, 175
Conn. App. 681, 685–86,
168 A.3d 530 (2017).
Because the defendant is no longer in possession of
the premises, his appeal is moot unless an exception
to the mootness doctrine applies. The defendant recognizes this fact in his appellate brief and argues that his
claim is nevertheless reviewable pursuant to both the
collateral consequences and ‘‘capable of repetition, yet
evading review’’ exceptions to the mootness doctrine.
We are not persuaded and, therefore, dismiss the appeal
as moot.
It is well settled that ‘‘the court may retain jurisdiction
when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur.
. . . [T]he litigant must establish these consequences
by more than mere conjecture, but need not demonstrate that these consequences are more probable than
not. This standard provides the necessary limitations
on justiciability underlying the mootness doctrine itself.
Whe[n] there is no direct practical relief available from
the reversal of the judgment . . . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the
litigant some practical relief in the future.’’ (Internal
quotation marks omitted.) In re P. M., 226 Conn. App.
378, 386–87,
318 A.3d 1085, cert. denied,
349 Conn. 919,
A.3d (2024).
In the present case, the defendant contends that, ‘‘as
a result of the trial court’s abuse of its discretion, the
[defendant] has [suffered] and continues to suffer actual
and substantial collateral consequences, including but
not limited to harm to the defendant’s access for his
benefits through the Veteran’s Administration and to
his reputation, which continue to impair his ability to
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Samsel v. Parks
secure safe and secure housing.’’ These assertions, without more, amount to mere conjecture.
This court previously rejected similar contentions in
Iacurci v. Wells, 108 Conn. App. 274,
947 A.2d 1034
(2008). In that case, as in the present one, the court
considered whether the appeal from a summary process
judgment had been rendered moot because the defendants no longer were in possession of the leased property. Id., 276. On appeal, the defendants claimed ‘‘that
their reputation in the community [had] been and
[would] be adversely affected by the eviction judgment
rendered against them.’’ Id., 281. In addition, one of the
defendants, who was an attorney for a casino, claimed
that his gaming license, which he was required to maintain as a casino employee, would ‘‘be affected adversely
by the summary process judgment because he [was]
required to disclose all judgments against him [pursuant
to] certain gaming license requirements.’’ Id., 282–83.
In rejecting these contentions, this court explained
that ‘‘the defendants . . . failed to show how a summary process eviction, in and of itself, damages a person’s reputation in the community at all, much less that
it rises to the level such that we would be inclined to
recognize it as a collateral consequence that would
allow this court to review an otherwise moot appeal.
Contra Putman v. Kennedy, 279 Conn. 162,
900 A.2d
1256 (2006) (defendant’s otherwise moot appeal of
expired domestic violence restraining order reviewable
because of its reasonably possible negative impact on
reputation in community); Williams v. Ragaglia, 261
Conn. 219,
802 A.2d 778 (2002) (en banc) (foster parent’s
otherwise moot appeal regarding revocation of foster
care license deemed reviewable due in part to possibility that revocation information would be disseminated
through government agencies creating reasonable possibility of negative impact on reputation as foster parent); Statewide Grievance Committee v. Whitney, 227
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Samsel v. Parks
Conn. 829, 633 A.2d 296 (1993) (attorney’s otherwise
moot appeal of expired suspension reviewable because
of collateral consequences to attorney’s reputation).
. . .
‘‘[Moreover] [t]he defendants [failed to] explain how
[the defendant attorney’s] license adversely will be
affected. Without more, we are unable to determine,
without speculating, whether there is a reasonable possibility that prejudicial collateral consequences will
occur. . . . Because this court will not speculate on
what is not in the record, we decline to review this
claim.’’ (Citation omitted; footnote omitted.) Iacurci v.
Wells, supra, 108 Conn. App. 282–83.
The same reasoning applies in the present case, in
which the defendant also has failed to explain how the
summary process judgment damages his reputation in
the community or how it affects his ‘‘access for his
benefits through the Veteran’s Administration.’’ Cf.
Housing Authority v. Lamothe, 225 Conn. 757, 765,
627 A.2d 367 (1993) (holding that appeal was not moot
despite defendant’s vacating of premises because judgment would have potentially prejudicial collateral consequences to defendant given plaintiff’s concession that
eviction from federally subsidized housing would hinder defendant’s ability to obtain future low-income
housing). As in Iacurci, because the defendant offers
mere conjecture as to possible collateral consequences,
‘‘we are unable to determine, without speculating,
whether there is a reasonable possibility that prejudicial
collateral consequences will occur.’’ Iacurci v. Wells,
supra,108 Conn. App. 283. Therefore, because we ‘‘will
not speculate on what is not in the record’’; id.; the
defendant has failed to demonstrate that the collateral
consequences doctrine applies in the present case.
The defendant also argues that his claim is reviewable
under the capable of repetition, yet evading review
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Samsel v. Parks
exception. See Loisel v. Rowe, 233 Conn. 370, 382–83,
660 A.2d 323 (1995). There are three requirements ‘‘for
an otherwise moot question to qualify for review under
the ‘capable of repetition, yet evading review’ exception
. . . . First, the challenged action, or the effect of the
challenged action, by its very nature must be of a limited
duration so that there is a strong likelihood that the
substantial majority of cases raising a question about
its validity will become moot before appellate litigation
can be concluded. Second, there must be a reasonable
likelihood that the question presented in the pending
case will arise again in the future, and that it will affect
either the same complaining party or a reasonably identifiable group for whom that party can be said to act
as surrogate. Third, the question must have some public
importance. Unless all three requirements are met, the
appeal must be dismissed as moot.’’ Id., 382–83.
The defendant argues that ‘‘it is unquestioned that
summary process actions are, by their very nature, limited proceedings, and without addressing the issues
on appeal, the effects of the challenged actions would
evade adjudication indefinitely. Second, the issues
raised in this appeal will most certainly arise again
. . . and the effects of the challenged action will affect
unrepresented and underrepresented tenants in housing matters in the future. Finally, the question of how
the trial courts can and should address tenant litigants
. . . is clearly a matter of public importance.’’ We conclude that the first requirement of the capable of repetition, yet evading review exception is not satisfied in
the present case.
‘‘The first [requirement] pertains to the length of the
challenged action. . . . The basis for this [requirement] derives from the nature of the exception. If an
action or its effects is not of inherently limited duration,
the action can be reviewed the next time it arises, when
it will present an ongoing live controversy. Moreover,
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Samsel v. Parks
if the question presented is not strongly likely to become
moot in the substantial majority of cases in which it
arises, the urgency of deciding the pending case is significantly reduced.’’ (Internal quotation marks omitted.)
Renaissance Management Co. v. Barnes, supra,175
Conn. App. 687.
The defendant has appealed from the denial of his
motion to open a default judgment rendered against
him in a summary process action. Although ‘‘[s]ummary
process appeals are particularly susceptible to becoming moot upon some action taken by the parties’’; Housing Authority v. Lamothe, supra,225 Conn. 763; such
cases do not involve ‘‘the functionally insurmountable
time constraints’’ involved in the ‘‘[p]aradigmatic examples [of] abortion cases and other medical treatment
disputes.’’ (Internal quotation marks omitted.) Wendy
V. v. Santiago, 319 Conn. 540, 546,
125 A.3d 983 (2015).
As § 47a-35 makes clear, termination of the automatic
stay and eviction of a tenant during the pendency of
an appeal is the exception—not the rule—in summary
process actions. See General Statutes § 47a-35 (b) (‘‘[i]f
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’’
(emphasis added)). Pursuant to Practice Book § 63-1
(c) (1), the filing of a motion to open within the five
day appeal period set forth in § 47a-35 suspends that
appeal period until the trial court resolves the motion.6
See Atlantic St. Heritage Associates, LLC v. Bologna,
204 Conn. App. 163, 170–71,
252 A.3d 881 (2021).
Thus, so long as both the motion to open and the
appeal from the denial thereof are filed within the
6
As previously noted; see footnote 4 of this opinion; when a trial court
terminates the automatic stay pursuant to § 47a-35 (b), an appellant may
file a motion for review of that decision in this court.
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Samsel v. Parks
respective five day appeal periods, a tenant will not be
dispossessed of the premises during the pendency of
an appeal in the majority of cases. Therefore, the issue
presented here—namely, whether the trial court abused
its discretion by denying a tenant’s motion to open a
default judgment—is not likely to become moot in the
vast majority of summary process cases. This is evident
from this court’s recent decisions. See, e.g., Prime Management, LLC v. Arthur, 217 Conn. App. 737, 754,
290
A.3d 401 (2023) (reversing judgment denying defendant
tenant’s motion to open default judgment); Josephine
Towers, L.P. v. Kelly, 199 Conn. App. 829, 835,
238 A.3d
732 (considering merits of defendant tenant’s appeal
from denial of motion to open filed after appeal period
from judgment of possession had expired), cert. denied,
335 Conn. 966,
240 A.3d 281 (2020); Purtill v. Cook,
197
Conn. App. 22, 26–27,
231 A.3d 245 (2020) (affirming
judgment denying defendant tenant’s motion to open
default judgment). Accordingly, because the issue presented will not evade review, the capable of repetition,
yet evading review exception to the mootness doctrine
does not apply in the present case. See Wendy V. v.
Santiago, supra, 319 Conn. 547.
Consequently, because we can afford the defendant
no practical relief, and because he has failed to demonstrate that a recognized exception to the mootness doctrine applies, we dismiss the defendant’s appeal for lack
of subject matter jurisdiction.
The appeal is dismissed.
