author: DUPONT, J.

text:
    FEDERAL HOME LOAN MORTGAGE CORPORATION v. KAREN VAN SICKLE
    (AC 17483)
    Foti, Landau and Dupont, Js
    Argued December 4, 1998
    officially released February 23, 1999

      Alan Rosner, with whom, on the brief, was Abram Heisler, for the appellant (defendant).

      Edward P. Jurkiewicz, with whom, on the brief, was William C. Pitt, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant, Karen Van Sickle, appeals from the trial court’s judgment of possession in a summary process action in favor of the plaintiff, Federal Home Loan Mortgage Corporation. The defendant claims that a foreclosure judgment, in which she was not named as a party, did not affect her month-to-month tenancy, and that the plaintiffs summary process action was improper because the defendant’s right to occupy the premises had not been terminated by the foreclosure. The sole issue on appeal is whether an oral month-to-month tenancy survives a judgment of strict foreclosure. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The subject property, located at 22 Apple-blossom Lane, Newtown, was owned by James P. Maguire III and Jeffrey S. Brauner, and mortgaged to People’s Bank on February 17, 1988. In October, 1996, the defendant took possession pursuant to an oral month-to-month lease. When the owners defaulted on their mortgage, the bank foreclosed on the property. A judgment of strict foreclosure was rendered on November 25, 1996. The law days passed and on January 16, 1997, absolute title to the property vested in the mortgagee, People’s Bank. The defendant was not made a party to the foreclosure action.

People’s Bank subsequently transferred the property to the plaintiff by quitclaim deed dated January 28,1997. The plaintiff seived the defendant with a notice to quit the premises on January 31, 1997, requesting that the defendant leave the premises on or before February 12, 1997. When the defendant failed to leave, the plaintiff brought a summary process action pursuant to General Statutes (Rev. to 1997) § 47a-23 (a). The three count summary process complaint alleged (1) nonpayment of rent, (2) no right or privilege to occupy the premises and (3) that the defendant’s right or privilege to occupy the premises had terminated. At trial, the plaintiff proceeded only on count three.

In a memorandum of decision dated July 30, 1997, the trial court stated: “When a mortgage is foreclosed and title has vested in the mortgagee, any existing lease granted by the mortgagor is extinguished and the lessee no longer has the right of possession. Unless the new owner and the tenant make a separate agreement, they are not in a landlord-tenant relationship.” The trial court found that when the period of redemption passed and title vested in the bank, the defendant’s lease agreement terminated and the defendant became a tenant at sufferance. The plaintiff, as the new owner of the property, had no obligations to the defendant because there was no lease agreement between them. The trial court concluded that the proper way for the plaintiff to regain possession was through a summary process action and that the notice to quit gave the defendant notice that the lease was no longer in effect. The trial court found that the plaintiff “presented evidence of the mortgage, the foreclosure, and the oral month-to-month lease agreement between the defendant and the mortgagor,” and that the defendant conceded that she received the notice to quit and did not claim defective service of the notice. Accordingly, the trial court rendered judgment of possession in favor of the plaintiff.

The defendant claims that the plaintiff failed to allege any act in support of its summary process action, other than service of the notice to quit, which terminated the defendant’s right or privilege of occupancy. According to the defendant, her monthly tenancy was not terminated by the foreclosure judgment because she was not made a party to that action, and thus her “month-to-month tenancy [could not be] extinguished by a proceeding of which she had no notice.” The defendant claims that she is entitled to some notice prior to the notice to quit for the plaintiff to obtain a judgment of possession. Additionally, the defendant claims that while the lease arrangement remains in effect and the tenant does not violate it, a summary process action can be initiated only for lapse of time or nonpayment of rent. The defendant alleges that neither of those circumstances applies to this case and, therefore, the trial court improperly rendered judgment in favor of the plaintiff.

The plaintiff counters that the foreclosure judgment terminated the defendant’s monthly tenancy and converted it into a tenancy at sufferance. As a tenant at sufferance, the defendant no longer had any right or privilege to occupy the premises. Thus, the plaintiff claims that the service of the notice to quit was sufficient notice to the defendant and proper pursuant to § 47a-23 (a) (3) because the defendant’s right to occupy the premises had been terminated. The plaintiff claims that there has been no attornment and that the statutory requirements for summary process have been satisfied and, therefore, the trial court properly rendered the judgment of possession in the plaintiffs favor. We agree with the plaintiff.

“The lease of a mortgagor’s tenant, if the lease was subsequent to the mortgage, is extinguished upon foreclosure by the mortgagee and the passing of the law days without a redemption. See Small Business Investment Co. v. Cavallo, 188 Conn. 286, 288-89, 449 A.2d 988 (1982) (mortgagor); Beach v. Beach Hotel Corp., 113 Conn. 716, 720, 156 A. 865 (1931) (tenant); R. Kratovil & R. Werner, Modern Mortgage Law and Practice (2d Ed. 1981) § 20.05; see also City Lumber Co. of Bridgeport, Inc. v. Murphy, [120 Conn. 16, 25, 179 A. 339 (1935)] (Upon foreclosure, [a]ll right and interest of subsequent incumbrancers [are] extinguished [and the mortgagee is] vested with absolute title in and dominion over the property.). Extinction of the lease does not, however, make the tenant a trespasser. The tenant becomes a tenant at sufferance at the moment his or her rightful possession terminates. A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his [or her] right thereto has terminated.” (Internal quotation marks omitted.) First Federal Bank, FSB v. Whitney Development Corp., 237 Conn. 679, 688-89, 677 A.2d 1363 (1996).

“As a titleholder, in the absence of an agreement to the contrary, the mortgagee has a right to immediate possession against its mortgagor . . . and hence also against a tenant who derives his interest from the mortgagor.” (Citations omitted.) Conference Center Ltd. v. TRC, 189 Conn. 212, 218-19, 455 A.2d 857 (1983). “Mere institution of a foreclosure action by a landlord’s mortgagee does not, however, ineluctably lead to the tenant’s dispossession.” Id., 219; see also EMC Mortgage Corp. v. Rossi, 43 Conn. Sup. 467, 469, 659 A.2d 212 (1995).

As the trial court noted, a foreclosing mortgagee, in this case the plaintiff as the successor in interest to the bank, has two options for obtaining possession of premises from a tenant. The mortgagee can name the tenant as a party in the foreclosure action and obtain a judgment of ejectment pursuant to General Statutes § 49-22, or after obtaining title, the mortgagee can proceed with a summary process action pursuant to § 47a-23. See Hite v. Field, 38 Conn. Sup. 70, 79, 462 A.2d 393 (1982). In this case, the defendant was not made a party to the foreclosure and the plaintiff proceeded with a summary process action.

“Summary process is a statutory remedy that enables a landlord to recover possession from a tenant upon the termination of a lease.” Sullivan v. Nameaug Walk-in Medical Center, P.C., 35 Conn. App. 185, 188, 644 A.2d 398 (1994), appeal dismissed, 233 Conn. 213, 657 A.2d 639 (1995). “The puipose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common law cause of action. The process is intended to be summary and is designed to provide an expeditious remedy to a landlord seeking possession. . . . We have recognized the principle that, because of the summary nature of its remedy, the summary process statute must be narrowly construed and strictly followed.” (Citation omitted; internal quotation marks omitted.) Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 581-82, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988); see also Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 816 (1993); Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988).

Section 47a-23 allows an owner or lessor to issue a notice to quit only under certain conditions, including: (1) when the lease terminates (a) by lapse of time, (b) by its own terms, (c) due to a violation of the lease, (d) for nonpayment of rent or (e) due to a nuisance, (2) when the premises is occupied by one who never had the right to occupy the premises, (3) when the occupant originally had the right or privilege to occupy the premises but that right has terminated or (4) when authorized by other statutes. See General Statutes § 47a-23 (a). “As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity.” Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989).

Our Supreme Court has repeatedly held that when a lease is subsequent to the mortgage, as in the present case, the lease is extinguished upon the foreclosure by the mortgagee and the passing of the law days without a redemption. See First Federal Bank v. Whitney Development Corp., supra, 237 Conn. 688-89; Small Business Investment Co. v. Cavallo, supra, 188 Conn. 288-89; Beach v. Beach Hotel Corp., supra, 113 Conn. 720. Accordingly, the defendant’s right or privilege to occupy the subject premises terminated when absolute title vested in the bank. The bank was not required to make the defendant, a tenant of the mortgagor under a tenancy subsequent to the mortgagee, who had no written recorded lease, a party to the foreclosure action, and the failure to do so merely prevented the bank, and subsequently the plaintiff, from obtaining immediate possession through an execution of ejectment. See General Statutes § 49-22 (a).

The defendant’s claim that she was entitled to notice of the termination of her lease in addition to the notice to quit is equally unavailing. We have held that “[s]ervice of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance.” Housing Authority v. Hird, supra, 13 Conn. App. 155; see also Bushnell Plaza Development Corp. v. Fazzano, 38 Conn. Sup. 683, 686, 460 A.2d 1311 (1983) (notice to quit constituted unequivocal offer to terminate monthly rental; lease neither voided nor rescinded until lessor performs unequivocal act in exercise of option and issuance of notice to quit is undeniable exercise of option).

General Statutes § 47a-27 sets forth the requirements for a mortgagee to regain possession and it “makes clear that mortgagees who obtain title by foreclosure, have the same rights under the summary process provisions as any other landlords.” Hite v. Field, supra, 38 Conn. Sup. 79. Section 47a-27 provides in relevant part: “The remedy provided by this chapter in favor of lessors shall extend to . . . the mortgagee of any land, building, apartment or dwelling unit, after his title has become absolute by foreclosure, and to all persons deriving title from him .... On a complaint by the mortgagee or his assigns, it shall be sufficient for him to prove the mortgage and his title thereunder, the foreclosure and the failure to redeem, that notice to quit at or after the expiration of the time limited for redemption has been served on the defendant and that he is the mortgagor, or one holding under him, and holds possession after the expiration of the term specified in such notice, unless the defendant can show a superior title in himself.” Here, the trial court found that the plaintiff presented evidence of the mortgage, the foreclosure and failure to redeem, the oral month-to-month lease agreement between the defendant and the mortgagor, and that the defendant received the notice to quit and did not claim that service of the notice was defective.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 47a-23 (a) provides in relevant part: “When the owner or lessor, or his legal representative, or his attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit. . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83; (E) nonpayment of rent when due for commercial property; (F) violation of section 47a-ll or subsection (b) of section 21-82; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80; or (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises; or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated; or (4) when an action of summary process or other action to dispossess a tenant is authorized under subsection (b) of section 47a-23c . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least five days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.”

       In Beach v. Beach Hotel Corp., 113 Conn. 716, 720, 156 A. 865 (1931), our Supreme Court held that when a lease is made after the mortgage has been executed, “there is no privity of estate between the mortgagee and the tenant; the lease is not binding upon the mortgagee ... it is only by attornment to the mortgagee or some recognition of a holding under him, that the tenant comes to occupy any contractual relationship to him, express or implied. . . .” An attornment is defined as “[1,]he agreement of a person to recognize a third party as a permissible successor party to a contract; most often, the agreement of a tenant to pay rent to a new landlord, especially a mortgagee who has foreclosed.” Black’s Law Dictionary (6th Ed. 1990). The defendant does not claim that an attornment occurred and there is no evidence in the record that the plaintiff or the bank entered into a rental agreement with the defendant.

       General Statutes § 49-22 (a) provides: “In any action brought for the foreclosure of a mortgage or lien upon land, or for any equitable relief in relation to land, the plaintiff may, in his complaint, demand possession of the land, and the court may, if it renders judgment in his favor and finds that he is entitled to the possession of the land, issue execution of ejectment, commanding the officer to eject the person or persons in possession of the land and to put in possession thereof the plaintiff or the party to the foreclosure entitled to the possession by the provisions of the decree of said court, provided no execution shall issue against any person in possession who is not a party to the action except a transferee or lienor who is bound by the judgment by virtue of a lis pendens. The officer shall eject the person or persons in possession and may remove such person’s possessions and personal effects and set them out on the a<tjacent sidewalk, street or highway.” (Emphasis added.)


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. ABDULLAH SHEHADEH
    (AC 17396)
    O’Connell, C. J., and Spear and Dupont, Js.
    Argued December 9, 1998
    officially released February 23, 1999

      Norman A. Pattis, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene Calistro, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Abdullah Shehadeh, appeals from the judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a. The primary issue of this appeal is whether the trial court improperly admitted evidence of the defendant’s prior arrest for cariying a pistol without a permit. We affirm the judgment of the trial court.

The jury reasonably could have found the facts that follow. The defendant owns a convenience store in New Haven. On Sunday, November 24,1996, four police officers entered the defendant’s store to investigate complaints of illegal beer sales. The officers observed that the beer coolers were uncovered and that the doors to the coolers were not locked, in violation of the state liquor laws. See General Statutes § 30-1 et seq. Soon thereafter, the defendant entered the store and requested that the officers leave the premises. When the officers attempted to inspect the coolers, the defendant stood between the officers and the coolers and refused to move. The defendant was told that he would be arrested if he did not step aside. The defendant continued in his refusal to move and the officers attempted to place him under arrest. An altercation ensued between the defendant and the officers in which the defendant received a laceration on his forehead. The defendant was treated for his injuries, arrested and charged with the crime of interfering with an officer.

At trial, the defendant presented a character witness who testified to the general reputation of the defendant in the community in which his store was located and that the defendant was not a violent person. The defendant, acting pro se, asked the witness whether she thought the defendant was a violent person and she replied, “No, I don’t . . . .” On cross-examination, the state asked the witness, over the defendant’s objection, whether she was aware of the fact that the defendant had been arrested for carrying a pistol without a permit and whether that would change her opinion of the defendant as a nonviolent person. The witness replied that she was aware of the arrest and that it would not change her opinion of the defendant.

On redirect, the defendant questioned the witness about his prior arrest and the fact that the charge was dismissed. The state objected and the trial court sustained the objection. During the colloquy following the objection, the court and the state, in the presence of the jury, stated that there was no evidence of the defendant’s conviction on the charge. The jury was then excused and the trial court reminded the defendant that, pursuant to an earlier discussion in chambers between the parties, the defendant was not allowed to question the witness about the specifics of the arrest, including the dismissal of the charge. When the jury returned, the trial court instructed the jury to disregard the defendant’s question relating to the dismissal of the charge.

The defendant claims that although the questioning of the witness concerning the defendant’s character as a nonviolent person may have opened the door for the state to impeach the credibility of the witness as to her opinion of the defendant’s nonviolence, the state’s questions on cross-examination had to be limited to that issue alone. According to the defendant, the evidence of his arrest for carrying a pistol without a permit does not relate to the character trait of nonviolence and is not relevant to the issue of whether the defendant is a violent person because, alone, the carrying of a gun is not indicative of whether a person is violent. We are not persuaded.

“Character may be proved by testimony concerning the accused’s general reputation in the community as to the trait. State v. Blake, 157 Conn. 99, 104, 249 A.2d 232 [1968]. The law in this state also allows proof of character by the testimony of those who have had an opportunity to form, and have formed, an opinion as to whether the accused possessed a particular character trait. . . . Whether or not the accused produces testimony of reputation or opinion to prove a trait, the prosecution may not use specific acts of misconduct to disprove the trait.” (Citations omitted.) State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). “Nonetheless, the state is allowed to test the basis for the witness’ opinion.” State v. Pettersen, 17 Conn. App. 174, 183, 551 A.2d 763 (1988), on appeal after remand, 20 Conn. App. 288, 566 A.2d 714 (1989), cert. denied, 213 Conn. 814, 569 A.2d 550 (1990).

Although the state may not disprove the trait in question by the introduction of evidence of prior acts of misconduct, it may cross-examine a character witness by referring to prior acts of misconduct relevant to that trait. State v. McGraw, 204 Conn. 441, 446-47, 528 A.2d 821 (1987). “The purpose of such cross-examination is not to contest the defendant’s own veracity but rather to test the basis of the opinion offered by the character witness”; id., 447; and “to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy.” (Internal quotation marks omitted.) State v. Ostolaza, 20 Conn. App. 40, 46, 564 A.2d 324, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989). “The question should not be extended to the details of the acts.” State v. Martin, supra, 170 Conn. 165.

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling . . . .” (Internal quotation marks omitted.) State v. Sullivan, 244 Conn. 640, 653, 712 A.2d 919 (1998). Our review of evidentiary rulings is limited. “Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); see also State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992).

In the present case, the defendant elicited testimony from a character witness concerning her opinion of the defendant as a nonviolent person. That testimony opened the door for the state to cross-examine the witness by reference to prior acts of misconduct relating to the trait of nonviolence. On cross-examination, the state asked the witness if she was aware of the fact that the defendant had been arrested for carrying a pistol without a permit and whether that knowledge altered her opinion regarding the defendant’s nonviolent character. In cross-examining the witness, the state attempted to test the basis of the witness’ opinion, but did not offer evidence of specific acts of misconduct. See State v. McGraw, supra, 204 Conn. 447 (“[t]he phrasing ‘were you aware’ and the follow-up question whether the fact of the arrest changed the witness’ opinion of the defendant’s reputation for honesty indicate that the prosecution sought to test the basis of [the witness’] opinion, not to challenge the defendant’s credibility”); see also State v. Martin, supra, 170 Conn. 164-65.

“To be admissible, the character evidence that a defendant seeks to introduce must be limited to specific traits and relevant to the offense charged. . . . During its cross-examination of [the character] witness, the state, in turn, may not refer to acts of misconduct that are irrelevant to the traits that the defendant has placed in evidence.” (Citations omitted.) State v. McGraw, supra, 204 Conn. 448. “The determination of relevance must be made according to reason and judicial experience. Robinson v. Faulkner, 163 Conn. 365, 371, 306 A.2d 857 [1972], That determination requires the exercise of the court’s discretion. State v. Blyden, 165 Conn. 522, 531, 338 A.2d 484 [1973].” State v. Martin, supra, 170 Conn. 166.

We conclude that an arrest on charges of carrying a pistol without a permit is relevant to the trait that the defendant put at issue, namely, nonviolence. A defendant’s possession or use of guns relates to the issue of nonviolence. See generally State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996); State v. Girolamo, 197 Conn. 201, 207, 496 A.2d 948 (1985). People do not usually carry guns without permits unless they are willing to resort to the use of guns if the necessity arises or unless they intend to commit acts of violence.

The defendant also claims that the admission of the evidence of the prior arrest, without a factual basis, coupled with the instruction to the jury to disregard the testimony that the charge had been dismissed, constituted harmful error and undermined the defendant’s right to a fair trial. This claim must also fail. Our Supreme Court has held that when a defendant opens the door for the state to cross-examine the witness by reference to prior acts of misconduct relevant to a particular trait, questions “should not be extended to the details of the acts.” State v. Martin, supra, 170 Conn. 165.

“[T]he fact that [a] defendant’s earlier charges were dismissed when he satisfied the conditions of accelerated rehabilitation does not in any way lessen the relevance of the evidence in [a] case.” State v. Morowitz, 200 Conn. 440, 449, 512 A.2d 175 (1986). Here, according to the transcript of the argument on the defendant’s objection to the question asked of the character witness, the state and the defendant acknowledged that the dismissal of the earlier charge against the defendant was secured after he satisfied conditions of accelerated rehabilitation. See General Statutes § 54-56e. The trial court properly limited the defendant’s questioning regarding the arrest and instructed the jury to disregard the comments of the defendant relating to the dismissal of the charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state claims that the defendant is precluded from arguing on appeal that the question asked of the character witness was improper because it was immaterial and irrelevant to the question of the defendant’s nonviolent character. The defendant clearly objected on the ground that the question was improper because the charge of carrying a pistol without a permit was eventually dismissed after the defendant completed a period of accelerated rehabilitation. Although less artfully expressed, the defendant also claimed that the question should not be allowed because the arrest did not prove that he was violent. We, therefore, address the propriety of the question on both bases.


author: PER CURIAM.

text:
    FIRST UNION NATIONAL BANK v. BENJAMIN BONITO, JR., ET AL.
    (AC 18325)
    O’Connell, C. X, and Landau and Spear, Js.
    Submitted on briefs December 16, 1998
    officially released February 23, 1999

      Jerald S. Barber filed a brief for the appellant (named defendant).

      Mark L. Bergamo filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this tax lien foreclosure case, the named defendant appeals following the trial court’s denial of his motion to open the judgment. The defendant claims that the trial court abused its discretion when it refused to consider the defendant’s changed circumstances and to extend the sale date. We affirm the judgment of the trial court.

The record discloses that, pursuant to General Statutes § 12-195h, the city of New Haven assigned tax liens on the defendant’s real estate to the plaintiff. On September 15,1997, the trial court rendered a judgment of foreclosure by sale and set March 28, 1998, as the sale date. On March 17, 1998, the defendant filed a motion to open the judgment and to extend the sale date. The motion was heard and denied by the trial court on March 26, 1998.

The defendant argued to the trial court that when the foreclosure was ordered he owned the property jointly with his wife, Maria Bonito. In February, 1998, their marriage was dissolved, and, as a result of the dissolution, the defendant became the sole owner of the property. At trial, the defendant contended that the dissolution of his marriage and the fact that he became the sole owner of the property constituted a sufficient change in circumstances to warrant the trial court’s opening of the judgment and extending the sale date. We do not agree.

The fact that the defendant’s only change in circumstance was his marital status does not constitute good cause. In addition, the defendant did not obtain refinancing, a fact that supports the trial court’s decision that good cause was not shown. Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 352-53, 579 A.2d 1054 (1990). In sum, there was no tangible evidence before the trial court that warranted granting the defendant’s motion to open the judgment.

“[A] foreclosure action constitutes an equitable proceeding. . . . In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Federal National Mortgage Assn. v. Dicioccio, 51 Conn. App. 343, 344-45, 721 A.2d 569 (1998). This court must make every reasonable presumption in favor of the trial court’s decision when reviewing a claim of abuse of discretion. Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). “Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” Connecticut National Bank v. Zuckerman, 29 Conn. App. 541, 545, 616 A.2d 814 (1992). In this appeal, we cannot conclude that the trial court abused its discretion.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

       We refer in this opinion to the named defendant, Benjamin Bonito, Jr., as the defendant.

       General Statutes § 12-195h provides: “Any municipality, by resolution of its legislative body, as defined in section 1-1, may assign, for consideration, any and all liens filed by the tax collector to secure unpaid taxes on real property as provided under the provisions of this chapter. The consideration received by the municipality shall be negotiated between the municipality and the assignee. The assignee or assignees of such liens shall have and possess the same powers and rights at law or in equity as such municipality and municipality’s tax collector would have had if the lien had not been assigned with regard to the precedence and priority of such lien, the accrual of interest and the fees and expenses of collection. The assignee shall have the same rights to enforce such liens as any private party holding a lien on real property.”


author: FOTI, J.

text:
    PAUL CARPENTER v. MICHAEL B. MONTANARO
    (AC 17816)
    O’Connell, C. X, and Foti and Sullivan, Js.
    Argued December 11, 1998
    officially released February 23, 1999

      David P. Friedman, with whom, on the brief, was James K. Filan, Jr., for the appellant (plaintiff).

      Richard, L. Pate, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff appeals from the judgment rendered by the trial court enforcing the terms of a stipulated judgment. The plaintiff claims that the trial court improperly granted the defendant’s motion to enforce the stipulated judgment without making findings of fact or conducting an evidentiary hearing. We reverse the judgment of the trial court.

The parties sought to dissolve their partnership through a stipulated judgment, which was rendered by the trial court, Grogins, J., on May 10,1996. The stipulation provided that the property owned by the partnership would be converted into two condominiums and, in the interim, that the taxes would be shared equally by the parties. The stipulation also provided that, in the event that either party defaulted, the nondefaulting party could either purchase the property formerly owned by the partnership for $1.4 million, or cause the property to be sold for what the market would bear. On April 10, 1997, the defendant filed a motion to enforce the stipulated judgment, claiming that the plaintiff was in default of the agreement because the plaintiff was delaying the conversion of the property to condominiums. The defendant sought an order directing the plaintiff to sell the property to him for $1.4 million or to have the property sold at a price satisfactory to the defendant.

The plaintiff, who had sent notice to the defendant on April 4, 1997, claiming that the defendant was in default because of his failure to pay his share of the taxes, responded by filing an opposition to the defendant’s motion and by filing his own motion to enforce the stipulated judgment on April 15, 1997. On April 23, 1997, the defendant filed an objection to the plaintiffs motion.

On September 23, 1997, the trial court, Mottolese, J., denied the plaintiffs motion. Thereafter, on October 14, 1997, the trial court, Melville, J., granted the defendant’s motion. Action on both motions was taken without evidentiary hearings or oral argument. On November 11, 1997, the plaintiff appealed from the trial court’s granting of the defendant’s motion to enforce the stipulated judgment. Thereafter, the plaintiff filed a motion for articulation. On June 23, 1998, the trial court filed its articulation as follows: “As I now recall, the basis on which this court granted the above-referenced motion is that said motion when presented to the court for decision on the nonarguable short calendar docket was uncontroverted and, finding no opposition pleading to consider, the court considered only what was before it.

“The court accepted the representations of the named defendant contained in the motion, reviewed the document attached thereto entitled ‘Motion for Stipulation’ dated May 10, 1996, and concluded, on the basis of the information at hand, that the defendant was entitled to enforcement of the judgment which the attachment set forth. Accordingly, the defendant’s motion was granted.”

Because the parties’ briefs to this court were filed months prior to the trial court’s articulation, we allowed the parties to argue, at oral argument, whether a manifest injustice had occurred in the trial court’s handling of the defendant’s motion.We can review a claim when it rises to the level of plain error. “Plain error is reserved for extraordinary circumstances and situations in which the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Barrese v. DeFillippo, 45 Conn. App. 102, 105, 694 A.2d 797 (1997). Here, plain error review is appropriate because the error is apparent on the face of the record and permitting the parties to brief the issue is unnecessary. See Leary v. Citizens & Manufacturers National Bank, 128 Conn. 475, 479, 23 A.2d 863 (1942); Martin v. Liberty Bank, 46 Conn. App. 559, 562 n.2, 699 A.2d 305 (1997).

Because there is no dispute as to the terms of the stipulated judgment, the trial court has the inherent power to enforce it summarily; see Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993); and the parties therefore are not entitled to an evidentiary hearing. See Ballard v. Asset Recovery Management Co., 39 Conn. App. 805, 810 n.3, 667 A.2d 1298 (1995) cert. denied, 236 Conn. 906, 670 A.2d 1306 (1996). Oral argument on motions in civil matters is a matter of right only for motions to dismiss, motions to strike, motions for summary judgment and motions for judgment of foreclosure; for all other motions, oral argument is at the discretion of the judicial authority. Practice Book § Ills (a).

While a consent judgment may not be enlarged or lessened, the trial court may, once noncompliance is determined, in the exercise of its equitable powers, fashion whatever orders are required to protect the integrity of the original judgment. Lee v. Tufveson, 6 Conn. App. 301, 303, 505 A.2d 18, cert. denied, 199 Conn. 806, 508 A.2d 31 (1986); see also Bank of Boston Connecticut v. DeGroff 31 Conn. App. 253, 256, 624 A.2d 904 (1993).

The record is clear, however, that the plaintiff filed an opposition to the defendant’s motion. The record is also clear, through the trial court’s articulation, that when the defendant’s motion was presented, it was presented without the plaintiffs opposition. The record shows also that the trial court gave great weight to the fact that the defendant’s motion was “uncontroverted” and, having found “no opposing pleading to consider . . . considered only what was before it.” While the court did not act improperly in ruling on what it thought to be an uncontested motion, it could not act in the full exercise of its authority because it was not presented with all the relevant material. A remand is necessary for that purpose.

The judgment is reversed and the matter is remanded for further proceedings.

In this opinion the other judges concurred.

       The defendant, appearing pro se, noted on his motion that he requested oral argument and that testimony was required.

       The plaintiff, who was represented by counsel, requested oral argument on his motion to enforce the stipulated judgment.

       Notice of the trial court’s action issued on October 27, 1997.

       The plaintiff did not file an appeal from the denial of his own motion to enforce the stipulated judgment.

       See Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994).


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. KEVIN PINETTE
    (AC 17367)
    O’Connell, C. J., and Foti and Spear, Js.
    Argued December 2, 1998
    officially released February 23, 1999

      Norman Pattis, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, rendered following the denial of his motion to withdraw his guilty plea, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1). The defendant claims that his guilty plea was invalid because it was obtained in violation of Practice Book §§ 39-19 and 39-26, formerly §§ 711 and 720, and also in violation of the fifth amendment to the United States constitution. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. During the early morning hours of September 4, 1995, the defendant, accompanied by other individuals, engaged in a verbal and physical altercation with the victim. During the altercation, the defendant yelled racial epithets at the victim. At some point, the defendant produced a knife and stabbed the victim in the abdomen, back and arm. During the assault, bystanders shouted at the assailants that they were going to call the police, to which one of the attackers replied, “Mind your own business.” Shortly thereafter, the assault stopped and the assailants dispersed. Additional facts are included as necessary in our analysis of this claim.

Before accepting the defendant’s plea, the trial court canvassed the defendant, asking him whether his counsel had discussed what the nature of the charges were, what the state would have to prove and whether he understood the charges and the elements involved. Additionally, the court determined that the defendant understood the maximum and minimum sentences for each crime and that he knowingly and voluntarily gave up his right to a trial. The trial court accepted the plea, finding that it was knowingly and voluntarily made with the assistance of competent counsel.

Prior to sentencing, the defendant filed a motion to withdraw his guilty plea on the ground that it was accepted without substantial compliance with Practice Book §§ 39-19 and 39-26. More specifically, the defendant claims that his plea was accepted when there was no factual basis for it in violation of Practice Book § 39-27 (5). The defendant claims that the plea canvass provided inadequate notice of the elements and facts of the offenses, and, therefore, prevented him from knowingly and voluntarily waiving his constitutional right to a trial. We are not persuaded.

“[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears [that] there has been [an] abuse of discretion.” (Internal quotation marks omitted.) State v. Spence, 29 Conn. App. 359, 363, 614 A.2d 864 (1992). “[F]or a plea of guilty to be constitutionally valid, the record must affirmatively disclose that there is a factual basis for the plea and that the defendant entered the plea voluntarily and intelligently.” State v. Eason, 192 Conn. 37, 43, 470 A.2d 688 (1984); but see Paulsen v. Manson, 203 Conn. 484, 491, 525 A.2d 1315 (1987) (factual basis inquiry one way of satisfying constitutional requirement).

I

The defendant first argues that the evidence was insufficient to establish a factual basis for a guilty plea to the conspiracy charge and, therefore, the denial of the defendant’s motion to withdraw was in violation of Practice Book §§ 39-26 and 39-27. More specifically, he claims that from the facts stated, the trial court could not conclude that there was an agreement between the defendant and others to commit an assault.

It is well established law that a guilty plea is in effect a conviction and the plea must be supported by a factual basis. State v. Battle, 170 Conn. 469, 475, 365 A.2d 1100 (1976) but see Paulsen v. Manson, supra, 203 Conn. 491. Such a factual basis is absent when the recited facts reveal less than all the elements of the crime charged. Id., 472. In the present case, as in Battle, a recitation of the facts read by the prosecutor provided the defendant with “real notice” of the nature of the charge. The record reflects that the defendant and three others drove past the victim in their car, later circled around and drove back to where the victim was walking. The car stopped, the defendant and two other men exited the car at the same time and approached the victim. The three men assaulted the victim and yelled racial slurs at him. A neighbor saw the assault and threatened to call the police, at which time one of the assailants told the neighbor to mind his own business. Shortly thereafter, the three men returned to their car and drove away.

“[T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 245-46, 690 A.2d 1370 (1997). Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). It is enough if the facts show that the conspirators are “knowingly engaged in a mutual plan to do a forbidden act. ’ ’ (Internal quotation marks omitted.) State v. Lynch, 21 Conn. App. 386, 392, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). On the basis of the state’s attorney’s recitation of the facts, we conclude that the trial court did not abuse its discretion when it determined that the requisite factual basis necessary to establish a conspiracy could be inferred.

II

The defendant next argues that the trial court improperly apprised the defendant of the elements of the offenses to which he was pleading. More specifically, the defendant asserts that the canvass was not stated in terms that he could understand, thereby resulting in inadequate notice of the elements of the offense. This claim is without merit.

In State v. Eason, supra, 192 Conn. 44-45, our Supreme Court ruled that a trial “court [is] entitled to presume that defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (Internal quotation marks omitted.) In sum, it is not the responsibility of the trial court to be the defendant’s counselor. Id.

Here, the defendant, as was the defendant in Eason, was fully apprised by his attorney of the nature of the charge and the maximum sentence to which he was exposed. The record amply supports the court’s conclusion that the defendant knowingly and voluntarily entered his plea and knowingly and intelligently chose among the alternative courses of action available to him. We conclude that the trial court properly denied the defendant’s motion to withdraw his guilty plea.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspirdcy.”

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;

        “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
      Practice Book § 39-26 provides: “A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”
      Practice Book § 39-27 provides: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       The defendant was accompanied by three men in the car; however, only the defendant and two others participated in the assault.

         The following is an excerpt from the court’s plea canvass:
      “The Court: Have you had enough time to discuss this case with your lawyer?
      “The Defendant: Yes.
      “The Court: Did he discuss with you the evidence the state would be required to present at trial in order to get a conviction beyond a reasonable doubt? That’s called the elements of the offense.
      “The Defendant: Yes.
      “The Court: Did he discuss the nature of the charges against you?
      “The Defendant: Yes.
      “The Court: Do you understand the nature of the charges against you?
      “The Defendant: Yes.”
      After questioning the defendant’s counsel as to his discussions with the defendant, the following colloquy ensued:
      “The Court: Mr. Pinette, do you understand you do not have to plead guilty? You have the right to continue to plead not guilty and force the state to prove you guilty at a trial beyond a reasonable doubt. Do you understand that, sir?
      “The Defendant: Yes.
      “The Court: Do you understand what the maximum penalty for these offenses could have been had you gone to trial and been convicted? Conspiracy to commit assault in the first degree: twenty years in jail and a $15,000 fine. Assault in the first degree: twenty years in jail and a $15,000 fine. And the judge could have added those up together for a total effective sentence of forty years in jail and a $30,000 fine. Do you understand that, sir?
      “The Defendant: Yes.
      “The Court: Five years mandatory minimum. Do you understand that, sir? On each count. Do you understand that?
      “The Defendant: Yes.”

       See footnote 2.


author: SULLIVAN, J.

text:
    FJK ASSOCIATES v. MAIDA KARKOSKI
    (AC 17794)
    O’Connell, C. J., and Sullivan and Daly, Js.
    Argued November 5, 1998
    officially released March 2, 1999

      Raymond J. Lemley, for the appellant (defendant).

      David E. Crow, Jr., for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendant tenant appeals from a judgment for the plaintiff landlord in a summary process action seeking possession of the subject premises for nonpayment of rent and lapse of time. The dispositive issue on appeal is whether the trial court improperly found that the plaintiff sustained its burden of proof on its lapse of time claim. We affirm the judgment of the trial court.

The parties entered into a written lease agreement for one year on or about December 12,1994. The written lease terminated on December 31, 1995, by its terms. After January 1, 1996, the defendant paid rent monthly to the plaintiff until May and June, 1997. On June 19, 1997, the plaintiff served the defendant a notice to quit possession on or before June 30, 1997. Because the defendant remained in possession after June 30, 1997, the plaintiff brought a summary process action against her, alleging that the tenancy had terminated by lapse of time and because of nonpayment of rent for the months of May and June, 1997. The defendant denied the allegations and filed two special defenses. The first special defense was that the subject premises contained numerous housing code violations. That defense was abandoned by the defendant at oral argument before this court. The second special defense alleged that the subject premises lacked a certificate of occupancy.

The trial court found that the plaintiff sustained its burden of proof on both lapse of time and nonpayment of rent. The trial court also found that the defendant did not sustain her burden of proof on either of her special defenses. This appeal followed.

The defendant first claims that the trial court incorrectly held that lapse of time was a proper basis for termination of this tenancy. We find no merit to this claim. The trial court correctly held that lapse of time was an adequate ground for termination under the facts of this case.

After the written lease expired by its terms, the plaintiff continued to accept the defendant’s monthly rent payment, creating a month-to-month tenancy. See General Statutes § 47a-3b; Williams v. Apothecaries Hall Co., 80 Conn. 503, 507, 69 A. 12 (1908). A periodic tenancy may be terminated unilaterally by either landlord or tenant. Hour Publishing Co. v. Gorez, 5 Conn. Cir. Ct. 419, 421, 254 A.2d 919 (1968). “In the case of a rental on a month-to-month basis the tenancy is not regarded as a continuous one. The tenancy for each month is one separate from that of every other month.” Welk v. Bidwell, 136 Conn. 603, 606-607, 73 A.2d 295 (1950). The renewal of a month-to-month tenancy requires the payment of rent by the tenant and the acceptance of payment by the landlord or “other circumstances showing an agreement to continue the lease.” Webb v. Ambler, 125 Conn. 543, 551, 7 A.2d 228 (1939). The mere act of holding over does not create a new tenancy. General Statutes § 47a-3d; Webb v. Ambler, supra, 551. Instead, the holdover tenant becomes a tenant at sufferance with no legal right to possession. Corthouts v. Connecticut Fire Safety Services Corp., 2 Conn. Cir. Ct. 34, 36-37, 193 A.2d 909 (1963). A landlord may properly remove such a tenant at sufferance through a summary process action for lapse of time. General Statutes § 47a-23 (a); Webb v. Ambler, supra, 551.

The defendant here did not pay rent after May, 1997, and the plaintiff did not accept rent after that date. Absent any other circumstances indicating an agreement to continue the lease after May, 1997, the lease terminated at that time. The defendant remained on the premises and continues to remain as of the hearing on this appeal. As we have noted, however, holding over by a lessee is not evidence of a new lease. The plaintiff provided the defendant with a notice to quit that gave the defendant more than ten days to quit possession of the premises. Therefore, we conclude that the trial court properly concluded that the plaintiff was entitled to possession because of lapse of time. Because this issue is dispositive, we need not consider the other issues raised on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47a-23 (a) provides in pertinent part: “When the owner or lessor, or his legal representative, or his attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands, and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time . . . (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a. or 21-83 . . . such owner or lessor, or his legal representative, or his attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least five days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.

       General Statutes § 47a-3b provides: “Unless the rental agreement fixes a definite term, the tenancy is month to month, except in the case of a tenant who pays weekly rent, then the tenancy is week to week.”

       General Statutes § 47a-3d provides: “Holding over by any lessee, after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease. Parol leases of lands or tenements reserving a monthly rent and in which the time of their termination is not agreed upon shall be construed to be leases for one month only.”

         See footnote 1.


text:
    NEW MILFORD SAVINGS BANK v. MAURICE J. JAJER ET AL.
    (AC 14888)
    O’Connell, C. J., and Hennessy and Dupont, Js.

      Argued November 3, 1998
    officially released March 2, 1999

      George M. Purtill, with whom was Seth Jacoby, for the appellants (named defendant et al.).

      Kenneth J. Bartschi, with whom were Wesley W. Horton and, on the brief, Michael J. Mannion, for the appellee (plaintiff).
   Opinion

DUPONT, J.

This case comes to us on remand from our Supreme Court. New Milford Savings Bank v. Jajer, 244 Conn. 251, 708 A.2d 1378 (1998). The defendants Maurice J. Jajer and Maria Jajer (defendants) previously appealed to this court from the trial court’s granting of the plaintiffs motion to open the 1994judgment of strict foreclosure, from the judgment of strict foreclosure dated May 15, 1995, and from the denial of their motion to open the 1995judgment. We reversed the judgment of the trial court on the grounds that, pursuant to General Statutes § 49-15, the trial court lacked jurisdiction to open the 1994 judgment of strict foreclosure after title had vested in the foreclosing mortgagee with respect to any part of the mortgaged property, and because General Statutes § 49-1 barred any further action on the mortgage debt after the mortgage had been foreclosed. New Milford Savings Bank v. Jajer, 44 Conn. App. 588, 594, 691 A.2d 598 (1997). Our Supreme Court reversed our decision, concluding that § 49-15 did not deprive the trial court of jurisdiction to open the judgment of strict foreclosure and that § 49-1 did not bar the plaintiffs access to equitable foreclosure proceedings, and remanded the case to us with direction to consider the defendants’ remaining claims. New Milford, Savings Bank v. Jajer, supra, 244 Conn. 264-65.

The defendants’ remaining claims are that the trial court (1) lacked jurisdiction to open the 1994 foreclosure judgment because the plaintiffs motion to open the judgment did not comply with the Bankruptcy Court’s order modifying the automatic stay, (2) improperly rendered the 1995 judgment of strict foreclosure because the trial court should have stayed the proceedings pursuant to General Statutes § 52-235b and because the time allowed for the defendants to plead had not yet expired when the plaintiff filed its motion for judgment and (3) improperly denied the defendants’ motion to open the 1995 judgment of strict foreclosure.

The relevant facts are stated in both New Milford Savings Bank v. Jajer, supra, 244 Conn. 251, and New Milford Savings Bank v. Jajer, supra, 44 Conn. App. 588. Additional facts relevant to this appeal will be set forth as we address the defendants’ remaining claims.

I

The defendants first claim that the trial court improperly opened the 1994 judgment of strict foreclosure because the plaintiffs motion to open the judgment exceeded the scope of the Bankruptcy Court’s order. We are not persuaded.

The trial court rendered the original judgment of strict foreclosure on August 22, 1994, and, when the defendants failed to redeem on their law day, title vested in the plaintiff on September 23, 1994. On September 26,1994, the defendants filed a chapter 11 bankruptcy petition, and the underlying proceedings in the trial court were automatically stayed. Soon thereafter, the plaintiff discovered that the property description in the foreclosure complaint did not include the entire property described in the mortgage deed, because one of three mortgaged parcels of land had been omitted.

On October 5, 1994, the plaintiff filed a motion in the United States Bankruptcy Court seeking relief from the automatic stay in order to foreclose the defendants’ interest in the third parcel that had been omitted from the foreclosure action. A hearing was held and on February 23, 1995, the Bankruptcy Court, Krechevsky, J., issued a memorandum of decision and an order modifying the stay. In the memorandum of decision, the court stated that “[t]he bank has a colorable claim to the parcel and is entitled to relief from the stay to take whatever action is appropriate in state court under the circumstances.” (Emphasis added.)

Thereafter, on March 10, 1995, the plaintiff filed a motion in the trial court to open the judgment of strict foreclosure in order to amend the complaint to contain a description of the omitted third parcel. The plaintiff requested that the trial court assign new law days with respect to the third parcel only. The plaintiffs motion was granted, and on April 12, 1995, the plaintiff filed an amended complaint in which the plaintiff included a description of the third parcel of land, as well as a description of the two original parcels.

The defendants claim that the trial court improperly granted the plaintiffs motion to open the 1994 foreclosure judgment in violation of the Bankruptcy Court’s order. Specifically, the defendants claim that the order lifting the automatic stay was limited to allowing the plaintiff to “prosecute a supplemental action concerning the mortgage dated March 10,1987.” The defendants maintain that the opening of the entire judgment and the filing of an amended complaint to include a description of all three parcels does not constitute a “supplemental action” within the meaning of the order. Because all actions taken in violation of an automatic stay of the Bankruptcy Court are void, the defendants argue that the trial court was without jurisdiction to act and, therefore, its decision to open the judgment of foreclosure was void.

We first note that “[t]he automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws.” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Mehta, 39 Conn. App. 822, 826, 668 A.2d 729 (1995). The Bankruptcy Court, however, is authorized to grant a creditor relief from the stay “for cause by terminating, annulling, modifying, or conditioning the stay.” Id., 827. “The terms of an order modifying an automatic stay must be strictly construed because a stay under § 362 [of the Bankruptcy Code] freezes in place all proceedings against the debtor and his property. . . . [B]ecause a section 362 stay freezes in place all proceedings against the debtor, and because only an order of the bankruptcy court can authorize any further progress in the stayed proceedings, it follows that the continuation of any proceeding can derive legitimacy only from the bankruptcy court order. The terms of an order modifying the automatic stay must therefore be strictly construed.” (Citation omitted; internal quotation marks omitted.) Id., 827-28.

The order in the present case modified the stay to permit the plaintiff to “proceed in state court to prosecute a supplemental action concerning the mortgage dated March 19, 1987.” The order, however, incorporated the memorandum of decision, in which the court stated that the plaintiff was “entitled to relief from the stay to take whatever action is appropriate” under the circumstances. (Emphasis added.) Our Supreme Court noted this difference, stating that “[i]n its formal order modifying the stay, the Bankruptcy Court referred to its memorandum of decision but described its order somewhat differently.” New Milford Savings Bank v. Jajer, supra, 244 Conn. 254 n.5.

Strictly construing the order modifying the stay, as we must, we cannot conclude that the trial court’s opening of the 1994 foreclosure judgment for the purpose of amending the complaint to include the third parcel was done in violation of that order. The order lifting the stay was rendered “in accordance” with the memorandum of decision and the order itself did not specifically limit the “supplemental action” to the third parcel. The defendants’ reliance on the term “supplemental action” to support their claim of the limited scope of the order is misplaced. In rendering the order, the Bankruptcy Court expressly stated that the plaintiff was entitled to take “whatever action” was appropriate under the circumstances.

II

The defendants next claim that the trial court improperly entered the May 15,1995judgment of strict foreclosure because (1) the defendants’ counsel was absent from court due to his own suspension hearing and, therefore, the trial court should have stayed the foreclosure proceedings pursuant to General Statutes § 52-235b and (2) on the date of the filing of the motion for judgment, the defendants had not been defaulted and were not yet required to plead in accordance with Practice Book § 10-61. We will address the defendants’ claims in turn.

A

The defendants claim that the trial court improperly rendered the judgment of strict foreclosure on May 15, 1995, in violation of § 52-235b. We agree.

The following additional facts are necessary to our resolution of this claim. In April, 1995, the defendants’ former attorney, Richard Greenspan, pleaded guilty to a felony charge unrelated to this case. Greenspan had been summoned to appear in the Hartford Superior Court on Monday, May 15, 1995, in a proceeding in which the statewide grievance committee sought to suspend his right to practice law pending his sentencing in a federal criminal matter. Because the suspension hearing was scheduled for the same day that the trial court was scheduled to hear the plaintiffs motion for judgment in this case in the Litchfield Superior Court, the defendants’ counsel did not appear at the hearing on the motion for judgment. According to the defendants, Greenspan informed the plaintiffs counsel on Thursday, May 11, 1995, that he was unable to attend the hearing and the circumstances that prevented his attendance. Greenspan also filed an objection to the plaintiffs motion for judgment on Friday, May 12, 1995, in which he requested that the trial court deny the plaintiffs motion in order to permit the defendants reasonable time to obtain new counsel and to file the appropriate pleadings. At the May 15, 1995 hearing, however, the trial court granted the plaintiffs motion for judgment of strict foreclosure and set the law days.

The defendants claim that although their attorney had not been suspended from the practice of law as of May 15, 1995, he was in the process of being disbarred and was “otherwise disabled” within the meaning of § 52-235b. The defendants claim that the suspension of proceedings due to the disablement of their lawyer as provided by § 52-235b was in effect and, therefore, the order of the trial court granting the plaintiffs motion for judgment was rendered in violation of the stay. The plaintiff counters that because the defendants’ counsel was not suspended from the practice of law until two days after the hearing, the thirty day stay afforded by the statute did not apply. Also, the plaintiff claims that even if the defendants’ counsel was otherwise disabled under the statute, the trial court had discretion to grant leave to the plaintiff to proceed. The plaintiff also argues that any error in rendering a judgment of strict foreclosure was harmless because the defendants had no meritorious defense.

The issue we must decide is whether the defendants’ attorney was otherwise disabled under the statute and if the stay afforded by § 52-235b applies to the facts of this case. This involves the determination of an issue not yet decided by an appellate court of this state. In deciding this issue, we are initially guided by well defined principles of statutory interpretation. “[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature.” (Internal quotation marks omitted.) Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 226, 720 A.2d 235 (1998); State v. Albert, 50 Conn. App. 715, 719, 719 A.2d 1183 (1998), cert. granted on other grounds, 247 Conn. 954, 723 A.2d 810 (1999). “In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated.” (Citations omitted; internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998).

“Moreover, principles of statutory construction require the court to construe a statute in a manner that will not frustrate its intended purpose or lead to an absurd result. Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). The court must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Internal quotation marks omitted.) Falco v. Institute of Living, 50 Conn. App. 654, 656-57, 718 A.2d 1009, cert. granted on other grounds, 247 Conn. 948, 723 A.2d 324 (1998).

We begin with the language of the statute itself. General Statutes § 52-235b provides: “If, prior to judgment, an attorney for any reason ceases to be a member of the bar or becomes physically or mentally incapacitated or otherwise disabled so as to prevent him from appearing in court in an action in which he has appeared for a client, further proceedings shall not be taken in the action against the client, without leave of the court, until thirty days after notice to appear in person or by another attorney has been served upon the client either personally or in such manner as the court directs.” (Emphasis added.)

The statute does not define the term “otherwise disabled.” There is no case law construing the words otherwise disabled as used in § 52-235b, and the legislative history sheds no light on its meaning. “If a statute . . . does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) Lauer v. Zoning Commission, 246 Conn. 251, 257, 716 A.2d 840 (1998). The word “otherwise” means “in other respects” or “in other or different circumstances.” Random House Dictionary (2d Ed. 1996). While the word “disable” means “[t]o weaken or destroy the normal physical or mental abilities of; incapacitate”; American Heritage Dictionary (2d Ed. 1991); it also means “[t]o make incapable, as of doing a job”; Roget’s II, The New Thesaurus (1988).

The plaintiff narrowly reads the words “otherwise disabled” to support its argument that the defendants’ counsel was not disabled, in the usual sense of the word, because he was not physically or mentally incapacitated or medically prevented from appearing in court. The statute, however, applies when “an attorney for any reason ceases to be a member of the bar or becomes physically or mentally incapacitated or otherwise disabled so as to prevent him from appearing in court . . . .” (Emphasis added.) General Statutes § 52-235b. “ ‘It is a basic tenet of statutory construction that the intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole.’ State v. Breton, 235 Conn. 206, 226, 663 A.2d 1026 (1995). Therefore, ‘[a] statute should be read as a whole and interpreted so as to give effect to all of its provisions.’ Pintavalle v. Valkanos, 216 Conn. 412, 418, 581 A.2d 1050 (1990) .... Furthermore, a statute must be read in light of the purpose it intends to serve.” (Citations omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 6-7, 675 A.2d 845 (1996).

The phrase “otherwise disabled so as to prevent him from appearing in court”; (emphasis added); when read in the context of the entire statute, applies to an attorney who, in respects or circumstances other than physical or mental incapacity is rendered incapable of appearing in court. To construe the statute otherwise and to limit the phrase only to those who suffer from a physical or mental incapacity or who are medically prevented from appearing in court, would render the phrase meaningless and duplicative of the statutory provision that applies to those who are “physically or mentally incapacitated.” “[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . .” (Internal quotation marks omitted.) Groton v. Yankee Gas Services Co., 224 Conn. 675, 689, 620 A.2d 771 (1993).

Interpreting § 52-235b so as to give effect to all of its provisions; Pintavalle v. Valkanos, supra, 216 Conn. 418; we conclude that the phrase otherwise disabled as used in the statute is not limited to those who are medically incapacitated. We therefore conclude that the defendants’ counsel in the present case, who was in the process of being disbarred and required to attend his own suspension hearing on the same day as the hearing on the plaintiffs motion for judgment, was otherwise disabled as contemplated by the statute.

In so holding, we do not mean to say that every time an attorney has a scheduling conflict regarding court hearings and appearances, the attorney is otherwise disabled and the stay afforded by the statute becomes effective. On the contrary, our holding is limited to the circumstances of this case, and the fact that the defendant’s attorney was prevented from appearing in court because he was in the process of being suspended from the practice of law and had to attend his own suspension hearing. This case involves much more than mere negligence or inadvertence on the part of the defendants’ counsel. See Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 363, 519 A.2d 76 (1986) (reasonable cause did not exist for setting aside nonsuit because “[t]he failure of counsel’s secretary to diary his appointment is not a valid excuse for the failure of counsel to meet his responsibility to the court to be present at the pretrial with his client” and no mitigating factors beyond counsel’s control were presented to court). Here, had defendants’ counsel been suspended at the May 12, 1995 hearing, he could not have participated in the hearing on the plaintiffs motion for judgment because an order of the court would have prevented him from practicing law.

Our conclusion is further supported by the legislative purpose of § 52-235b. Section 52-235b is entitled: “Proceedings stayed if attorney unable to appear.” The statute was “designed to protect clients whose attorneys cease to be members of the Bar, or become incapacitated. The bill protects them by preventing default judgments from entering against them until the Court permits a default to enter, or until thirty days after actual notice to the client.” 13 H.R. Proc., Pt. 11, 1969 Sess., pp. 4964-65. The purpose of the statute would be thwarted if, as in the present case, a default judgment entered against a party whose attorney was unable to appear for a court hearing because he attended his own suspension hearing held the same day, but who was not suspended until two days after that hearing.

We hold, under the facts of this case, that the thirty day automatic stay provided in the statute was in effect, and the trial court improperly granted the plaintiffs motion for judgment of strict foreclosure in violation of the stay.

B

The defendants also claim that the trial court improperly rendered the 1995 judgment of foreclosure because the time allowed for the defendants to plead had not expired and the defendants had not been defaulted prior to the time the plaintiff filed its motion for judgment. We agree.

The following additional facts are necessary to address this issue. The plaintiff filed an amended complaint on April 12, 1995. On April 27, 1995, the plaintiff filed a motion for judgment of strict foreclosure on the amended complaint. After the motion for judgment was filed, the plaintiff, on May 12, 1995, filed a motion for default for failure of the defendants to plead, which was granted by the clerk that day. See Practice Book § 17-32, formerly § 363A. A hearing was held on the motion for judgment the following Monday, May 15, 1995, and the motion was granted by the trial court.

Practice Book § 10-8, formerly § 114, provides in relevant part: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading . . . except that ... in actions to foreclose a mortgage on real estate the initial time period shall be fifteen days. . . .” Practice Book § 10-61 provides in relevant part: “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment . . . .” Accordingly, the defendants had fifteen days from the filing of the plaintiffs amended complaint, or until April 27, 1995, in which to plead. The defendants did not file an answer to the amended complaint by this time. At the time the plaintiff filed its motion for judgment, fifteen days had elapsed from the filing of the plaintiffs amendment.

Practice Book § 17-32, formerly § 363A, provides in relevant part: “(a) Where a defendant is in default for failure to plead pursuant to Section 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar, (b) If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. . . .”

In the present case, the plaintiff filed a motion for default on May 12,1995, and mailed notice to the defendants’ attorney who received it on May 15, 1995. The plaintiff filed its motion for judgment on April 27,1995, prior to the default’s being entered, and before a motion for default had been filed. The motion for judgment was granted on May 15, 1995, only three days after notice of the default was sent to the defendants.

On Friday, May 12, 1995, the plaintiff filed a motion for default for failure to plead and the clerk granted the motion. On the same day, the defendant’s counsel filed an objection to the plaintiffs motion for judgment in which he requested that the trial court give the defendants a reasonable time to obtain new counsel and to file an appropriate pleading. Thus, the court was on notice at the time judgment was rendered on Monday, May 15, 1995, that the defendants, who had been defaulted by clerical action on May 12, 1995, were attempting to invoke the provisions of Practice Book § 363A (b) by filing an answer, which would have entitled them to the clerical action of having the default set aside.

We conclude that the trial court should not have rendered its judgment on May 15, 1995.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The original panel of judges in New Milford Savings Bank v. Jajer, supra, 44 Conn. App. 588, included Judge Maxwell Heiman, who was deceased at the time the remand was issued. The appeal was therefore reargued before a new panel.

       The defendants’ third claim is subsumed in the second issue and need not be separately discussed. We also note that the defendants claim that the trial court’s judgment of strict foreclosure was not a final judgment because essential elements, such as the amount of the debt, value of the property, fees and costs, and the setting of law days, were not determined and that, therefore, the appeal should be dismissed. Unlike in Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 597 A.2d 1289 (1991), the plaintiff here sought to foreclose on only the third of three parcels at issue, leaving all other terms the same as in the prior foreclosure proceeding, which had found the necessary elements for a final judgment. The trial court in this case set new law days. Although the trial court did not award attorney’s fees, either in the original foreclosure of the two parcels or in the foreclosure that included the third parcel, that fact does not deprive an appellate court of jurisdiction over an appeal that is otherwise final. Benvenuto v. Mahajan, 245 Conn. 495, 715 A.2d 743 (1998). Even if the actual value and debt amount are no longer as found in the original foreclosure action, dismissal is not warranted because the lack of a factually correct finding does not affect the finality of a judgment for appeal purposes. Because we must remand this case, the trial court will have an opportunity to reexamine, if necessary, the findings made in the original foreclosure action.

       “The filing of a petition in bankruptcy operates as a stay of the ‘commencement or continuation ... of a judicial . . . action or proceeding against the debtor that was or could have been commenced before the commencement of the case.’ 11 U.S.C. § 362 (a) (1).” Citicorp Mortgage, Inc. v. Mehta, 39 Conn. App. 822, 827, 668 A.2d 729 (1995).

       General Statutes § 52-235b provides: “If, prior to judgment, an attorney for any reason ceases to be a member of the bar or becomes physically or mentally incapacitated or otherwise disabled so as to prevent him from appearing in court in an action in which he has appeared for a client, further proceedings shall not be taken in the action against the client, without leave of the court, until thirty days after notice to appear in person or by another attorney has been served upon the client either personally or in such manner as the court directs.”

       The following colloquy between the trial court and the plaintiffs counsel took place at the hearing:
      “[Plaintiffs Counsel]: For the record, Tom Allingham for the plaintiff. This is a motion for judgment on the amended complaint. The amended complaint was filed in error in the legal description of the original complaint. Judgment previously entered on the original complaint. We are asking the court to render judgment now and incorporate the same terms previously found.
      “The Clerk: Your Honor, I received a letter Friday from Attorney Greenspan who at the moment represents the defendants. It is actually an objection to the motion today. Your Honor may wish to read before acting on it.
      “The Court: Have you seen this?
      “[Plaintiffs Counsel]: Yes, I have, Your Honor. In response to it, I do have a couple of things to say. First thing is that Mr. Greenspan and his clients have been aware of this eventuality for over one month. They have availed themselves to this problem requesting enlargement of time in federal court. I have a pleading dated April 10, which he is asking for additional time in federal court because of this same problem. So they have known for over a month this problem existed. This is a 1992 foreclosure. We have been involved in two bankruptcies. The last bankruptcy is still pending. The parties have already stipulated to certain facts and that bankruptcy where they concede the validity of this mortgage, I believe there is no valid defense. Counsel hasn’t filed a defense.
      “The Court: You said that he has a right to file an answer to the amended complaint.
      “[Plaintiffs Counsel]: He has a right, Your Honor, for some time. Yet he has not done it.
      “The Court: He has been defaulted?
      “[Plaintiffs Counsel]: Yes, Your Honor.
      “The Clerk: As of Friday, defaulted for failure to plead.
      “[Plaintiffs Counsel]: He should have responded to it within fifteen days and he did not and he is still not filing an answer.
      “The Court: What are you asking to have done today?
      “[Plaintiffs Counsel]: The original judgment or judgment now enter on the amended complaint and the law days begin to run.
      “The Court: Very well. So ordered.”

       To the extent that § 52-235b affords the trial court any discretion to take action against the defendants in spite of their lawyer’s disability, we conclude, on the facts of this case, including those discussed in part II B of this opinion, that any such discretion was abused. Furthermore, there is no indication in the record that the plaintiff asked the trial court to exercise its discretion.

       The plaintiff also argues that even if the trial court improperly rendered the judgment of strict foreclosure, the error was harmless because the defendants did not have any meritorious defense, our Supreme Court having resolved all of the issues raised by the defendants’ special defenses against them. Our Supreme Court granted certification limited to the issue: “Did the Appellate Court properly conclude that the trial court lacked jurisdiction to open the judgment of foreclosure based on General Statutes §§ 49-15 and 49-1?” (Internal quotation marks omitted.) New Milford Savings Bank v. Jajer, supra, 244 Conn. 255. The defendants’ special defenses related to §§ 49-15, 49-1 and 49-14. The Supreme Court determined that none of the special defenses, including that based on § 49-14, ousted the trial court of jurisdiction on the facts of this case, and remanded the case to this court for the purpose of considering the defendants’ remaining claims. That remand would be nullified if we could summarily conclude that the judgment of strict foreclosure was harmless error.

       At the time the judgment was rendered, § 17-32, formerly § 363A, did not provide, as it does now, that “[a] claim for a hearing in damages or motion for judgment shall not be filed before the expiration of fifteen days from the date of notice of issuance of the default under this subsection.”