Tappin v. Homecomings Financial Network, Inc.

• Decision Date: 16 September 2003
• Docket Number: (SC 16724)
• Citation: 830 A.2d 711,265 Conn. 741
• Court: Connecticut Supreme Court
• Parties: STEPHANIE TAPPIN v. HOMECOMINGS FINANCIAL NETWORK, INC.

265 Conn. 741

830 A.2d 711

STEPHANIE TAPPIN v. HOMECOMINGS FINANCIAL NETWORK, INC.

(SC 16724)

Supreme Court of Connecticut.

Argued February 10, 2003.

Officially released September 16, 2003.

Borden, Norcott, Palmer, Vertefeuille and Zarella, Js. Amy Eppler-Epstein, for the plaintiff in error.

Geoffrey K. Milne, for the defendant in error. David A. Pels filed a brief for the Connecticut Alliance for Basic Human Needs et al. as amici curiae.

Opinion

VERTEFEUILLE, J.

The principal issue raised by this writ of error is whether a party who has acquired title to a property through a foreclosure action can eject a tenant who took possession after the lis pendens was filed, when the tenant was not joined as a party to the foreclosure action pursuant to General Statutes § 49-22 (a).¹ The plaintiff in error, Stephanie Tappin (plaintiff), who was a tenant at a property acquired through foreclosure by the defendant in error, Homecomings Financial Network, Inc. (defendant), filed a writ of error with this court claiming that the trial court improperly refused to enjoin an execution of ejectment against her. We conclude that a tenant must be joined as a party to the foreclosure action in order to be ejected pursuant to § 49-22 (a).

The relevant facts and procedural history are as follows. In July, 1999, the defendant's predecessor in title brought a mortgage foreclosure action against Enid Mullings, the owner of property located at 762 Woodin Street in Hamden (property).² In conjunction with the foreclosure, the defendant's predecessor filed a lis pendens against the property in the Hamden land records.

A judgment of strict foreclosure was rendered on October 15, 2001, and the initial law date was scheduled for December 17, 2001. On November 1, 2001, after the foreclosure action had gone to judgment but prior to the expiration of the law days, Mullings entered into a written lease with the plaintiff, and the plaintiff and her six children took occupancy of the property.³ The plaintiff was unaware of the foreclosure action when she signed the lease and moved into the property. The plaintiff was never added as a party to the foreclosure action, and the defendant did not foreclose the plaintiff's interest as an omitted party pursuant to General Statutes § 49-30.⁴ Thereafter, an execution of ejectment was issued against Mullings and was served on the plaintiff.⁵ The execution of ejectment was scheduled to be enforced on February 15, 2002, nine days after the plaintiff received notice of the ejectment.

On February 11, 2002, the plaintiff moved to enjoin the execution of ejectment. After a hearing, the trial court denied the plaintiff's motion to enjoin but stayed the execution of ejectment until May 1, 2002. The trial court further ordered payment of use and occupancy in accordance with the lease as a condition of the stay. The plaintiff then filed this writ of error with this court on February 28, 2002.⁶ After oral argument on the writ of error, this court was notified in a letter from the plaintiff's attorney that the plaintiff had vacated the property.

In her writ of error, the plaintiff claims that § 49-22 (a) prohibits her ejectment because she was not made a party to the foreclosure action.⁷ The defendant asserts that this court lacks subject matter jurisdiction over the present case for multiple reasons. It further claims that the plaintiff has failed to provide an adequate record for this writ of error.⁸ Because the plaintiff has vacated the property, we must consider the threshold jurisdictional issue of mootness before addressing the parties' remaining claims. We conclude that the writ of error is moot but that it nonetheless comes within the exception to the mootness doctrine for cases that are capable of repetition yet evading review. We further conclude that we properly have jurisdiction over the plaintiff's claims. We therefore reach the merits of the plaintiff's claim that § 49-22 (a) prohibits her ejectment because she was not made a party to the foreclosure. We agree with the plaintiff.

I

We begin with the defendant's claim that the present writ of error is moot as a result of the plaintiff having vacated the property. Both parties agree that, although the plaintiff's claim is moot because this court can render no practical relief, we should nevertheless consider the merits of the issue raised by the plaintiff in the present writ because it is capable of repetition yet evading review. We agree with the parties.

"When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow....

"We note that an otherwise moot question may qualify for review under the capable of repetition, yet evading review exception. To do so, however, it must meet three requirements. 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 writ of error] must be dismissed as moot." (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754-55, 826 A.2d 156 (2003); accord Conetta v. Stamford, 246 Conn. 281, 295-96, 715 A.2d 756 (1998). We conclude that the present case meets all three requirements for review under the capable of repetition yet evading review exception.

First, we determine that most cases addressing the issue of the ejectment of a tenant who took possession after the filing of a lis pendens without making the tenant a party to the foreclosure would become moot before appellate litigation could be resolved. "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, 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." Loisel v. Rowe, 233 Conn. 370, 383-84, 660 A.2d 323 (1995).

The issue raised in the present writ is necessarily limited in its duration because there is a strong likelihood that the foreclosing lender will obtain possession of the property through actions that are more expeditious than the appeal or writ of error routes. The lender can obtain possession from the tenant by bringing a summary process action pursuant to General Statutes § 47a-23a⁹ and successfully obtaining judgment while a writ of error is pending concerning the execution of ejectment. A summary process action is expeditious because the pleadings must advance every three days.¹⁰ Alternatively, the lender can bring a foreclosure action against the tenant as an omitted party pursuant to § 49-30.¹¹ Because it is unlikely that a tenant will have a defense to the summary process action or the foreclosure, these proceedings are likely to be resolved more quickly than an appeal or writ of error.

The present writ of error also satisfies the second requirement for the capable of repetition yet evading review exception. "A requirement of the likelihood that a question will recur is an integral component of the capable of repetition, yet evading review doctrine. In the absence of the possibility of such repetition, there would be no justification for reaching the issue, as a decision would neither provide relief in the present case nor prospectively resolve cases anticipated in the future." (Internal quotation marks omitted.) Id., 384.

The issue raised by the plaintiff in the present writ already is recurring in other cases. Several ejectment cases raising issues similar to that in the present writ currently are pending in the Superior Court. See Washington Mutual v. Greengas, Superior Court, judicial district of New Haven, Docket No. CV02-0459598S; Mortgage Electronic Registration Systems v. Marra, Superior Court, judicial district of New Haven, Docket No. CV01-0455341S. The existence of these similar cases demonstrates that a decision in the present writ of error prospectively will resolve other pending cases.

Finally, the issue raised in the present writ also meets the public importance requirement. "Since judicial resources are scarce, and typically reserved for cases that continue to be contested between the litigants, this court does not review every issue that satisfies the criteria of limited duration and likelihood of recurrence. Consideration of the importance of the issue represents a sound means for distinguishing those cases that should be reviewed and those that should not." Loisel v. Rowe, supra, 233 Conn. 387. The present writ of error calls for us to determine the respective rights of a foreclosing lender and a tenant in possession of the foreclosed property, an issue of obvious public importance given the number of foreclosure cases brought in the courts of this state each year. We, therefore, conclude that, although moot, the claim raised by the plaintiff in the present writ is capable of repetition yet evading review.

II

We next must consider the remaining jurisdictional claims raised by the defendant,...