Colchester Estate Ventures, LLC v. Madden

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Colchester Estate Ventures, LLC v. Madden

COLCHESTER ESTATE VENTURES, LLC v.
PETER MADDEN
(AC 46972)
Bright, C. J., and Clark and Westbrook, Js.

Syllabus

The defendant tenant appealed from the trial court’s denial of his motion
to restore to the docket the summary process action filed against him and
then subsequently withdrawn by the plaintiff landlord. He claimed that the
court abused its discretion in denying his motion because he had acquired
a vested right to litigate various allegations of malfeasance by the plain-
tiff. Held:

The trial court did not abuse its discretion in denying the defendant’s motion
to restore the action to the docket, as the only outstanding filing by the
defendant on the docket at the time the plaintiff withdrew the action was
the defendant’s motion to dismiss and for summary judgment, which was
purely defensive in character and which did not request affirmative relief
or other redress, and, thus, the court lacked the authority to restore the
case to the docket when the defendant, following the plaintiff’s withdrawal,
sought to revive the case to litigate requests for relief he had not made
while the case was pending.
Argued October 17—officially released December 24, 2024

Procedural History

Summary process action, brought to the Superior
Court in the judicial district of New London, Housing
Session at Norwich, where the case was withdrawn;
thereafter, the court, Hon. Francis J. Foley III, judge
trial referee, denied the defendant’s motion to restore
the case to the docket, and the defendant appealed to
this court. Affirmed.
Peter Madden, self-represented, the appellant (defen-
dant).
Gary J. Greene, for the appellee (plaintiff).
Opinion

PER CURIAM. The self-represented defendant, Peter
Madden, appeals from the trial court’s denial of his
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Colchester Estate Ventures, LLC v. Madden

motion to restore to the docket (motion to restore)
the summary process action filed against him by the
plaintiff, Colchester Estate Ventures, LLC. On appeal,
the defendant claims that the court abused its discretion
in denying his motion to restore because he had acquired
a vested right to litigate various allegations of malfea-
sance by the plaintiff. We affirm the judgment of the
court.

The following procedural history is relevant to this
appeal. On January 20, 2023, the plaintiff served a notice
to quit possession on the defendant for nonpayment
of rent for his apartment in Colchester. The plaintiff
commenced a summary process action against the
defendant on February 1, 2023. On February 15, 2023,
the defendant filed a combined motion to dismiss and
for summary judgment, accompanied by an affidavit,
various other exhibits, and a supporting memorandum
of law. In support of his motion, the defendant argued
that the notice to quit and the complaint were jurisdic-
tionally defective and that the plaintiff’s attempt to evict
him was retaliatory. He sought judgment in his favor
and dismissal of the action.

The plaintiff filed its opposition to the defendant’s
motion on June 21, 2023. On July 5, 2023, the defendant
moved for an extension of time to file his reply to the
plaintiff’s opposition. The court, Hon. Francis J. Foley
III, judge trial referee, granted that motion on July 6,
2023, and ordered that ‘‘[t]he reply may be filed on the
date set for trial.’’ On July 19, 2023, prior to trial and
before the defendant had filed his reply, the plaintiff
withdrew the summary process action.1
1
Although the plaintiff’s withdrawal form does not state a reason for the
withdrawal, the plaintiff represents in its appellee’s brief that it withdrew
the summary process action because, ‘‘[u]pon review of the file and the
pleadings in preparation [for] trial,’’ it concluded that ‘‘certain deficiencies
did in fact exist.’’
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On July 28, 2023, the defendant filed a motion to
‘‘open’’ the withdrawal (motion to open), accompanied
by a supporting memorandum and exhibits, in which
he alleged that the plaintiff, its managing agent, and its
attorneys had perpetrated a ‘‘fraud on the court’’ in the
defendant’s case and other cases by, inter alia, filing
perjured affidavits, fraudulent motions, and bad faith
complaints. The exhibits submitted in support of the
motion to open included motions and submissions that
the defendant had not filed with the trial court prior
to the plaintiff’s withdrawal, including the defendant’s
reply to the plaintiff’s opposition to his motion to dis-
miss; a motion ‘‘to change the order of the trial, for a
stay of plaintiff’s affirmative case, and separate trials’’;
and a motion to ‘‘dismiss, for summary judgment, con-
tempt and sanctions’’ that sought various sanctions
against the plaintiff. In his motion to open, the defen-
dant averred that he had intended to serve and file these
various papers on the trial date of the summary process
action, but that he had been ‘‘preempted by the plain-
tiff’s withdrawal.’’
The court denied the defendant’s motion to open on
August 15, 2023, on the ground that a motion to open
was not the proper procedural vehicle to restore a case
to the docket. Thereafter, on September 11, 2023, the
defendant filed the motion to restore, which incorpo-
rated by reference the motion to open and its supporting
exhibits. The court denied this motion on September
14, 2023, stating in relevant part: ‘‘At no time [prior
to trial] did the defendant file any pleadings seeking
affirmative relief. He now seeks to have this case
restored to the docket to seek orders and relief that
were never sought while the case was pending. The
motion to restore is denied.’’ This appeal followed.2
2
While this appeal was pending, the plaintiff filed a new summary process
action against the defendant for nonpayment of rent. See Colchester Estate
Ventures, LLC v. Madden, Superior Court, judicial district of New London
at Norwich, Docket No. CV-XX-XXXXXXX-S. In connection with the present
appeal, the defendant filed a motion requesting that we take judicial notice
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The defendant claims that the court erred in denying
his motion to restore because he had a vested right
to litigate the allegations of malfeasance made in that
motion and the supporting attachments. Relying heavily
on this court’s decision in Palumbo v. Barbadimos, 163
Conn. App. 100, 134 A.3d 696 (2016), he argues that the
plaintiff’s withdrawal was an improper tactical maneu-
ver designed to avoid an unfavorable ruling on his alle-
gations of wrongdoing and request for sanctions, and
that the court should have restored the case in order
to afford him a speedy resolution of his claims. We
disagree.

The following legal principles and standards of
review govern our resolution of the defendant’s claim.
General Statutes § 52-80 provides in relevant part that
a plaintiff ‘‘may withdraw any action so returned to and
entered in the docket of any court, before the com-
mencement of a hearing on the merits thereof. . . .’’
‘‘The right of a plaintiff to withdraw his action before
a hearing on the merits, as allowed by . . . § 52-80, is
absolute and unconditional.’’ (Internal quotation marks
omitted.) Travelers Property Casualty Co. of America
v. Twine, 120 Conn. App. 823, 826–27, 993 A.2d 470
(2010). ‘‘Under [the] law, the effect of a withdrawal, so
far as the pendency of the action is concerned, is strictly
analogous to that presented after the rendition of a final
judgment or the erasure of the case from the docket.
. . . The court unless [the action] is restored to the
docket cannot proceed with it further . . . .’’ (Internal
of this new action, which we granted on October 15, 2024. On October 31,
2024, following oral argument before this court in the present case, the trial
court dismissed the new summary process action, finding that the plaintiff
had submitted ‘‘knowingly false or intentionally misleading’’ affidavits pursu-
ant to the Coronavirus Aid, Relief, and Economic Security (CARES) Act,
Pub. L. No. 116-136, 134 Stat. 281 (2020), and that the plaintiff had failed
to provide the defendant with thirty days’ notice to vacate, as required under
the CARES Act.
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quotation marks omitted.) Doe v. Bemer, 215 Conn. App.
504, 513–14, 283 A.3d 1074 (2022).
A plaintiff’s broad authority pursuant to § 52-80 to
unilaterally withdraw an action, however, ‘‘does not
automatically extend to the plaintiff the additional right
to commence an essentially identical action following
that withdrawal if the primary purpose for doing so is
to undermine an order of the court rendered in the
prior litigation or if the withdrawal and subsequent
refiling implicates a substantial right that vested in
another party to the litigation and that likely will be
jeopardized should the plaintiff proceed with the new
action. . . . In either instance, if seasonably requested
by the defendant or other third party, the court should
exercise its discretion to restore the original action
to the docket.’’ (Citation omitted; footnote omitted.)
Palumbo v. Barbadimos, supra, 163 Conn. App. 115–16.
‘‘[A] ‘vested right’ in this context simply refers to a right
acquired and presently held by a party to the withdrawn
action that would be injuriously affected as a result of
the withdrawal.’’ Id., 113 n.13.
Practice Book § 10-55 provides in relevant part that
the plaintiff’s withdrawal of an action after the defen-
dant has filed a counterclaim ‘‘shall not impair the right
of the defendant to prosecute such counterclaim as
fully as if said action had not been withdrawn . . . .’’
Therefore, when a defendant has a pending counter-
claim at the time of the plaintiff’s withdrawal, that coun-
terclaim survives the withdrawal as a matter of law,
and if that counterclaim is wrongly stricken from the
docket along with the plaintiff’s action, the court has
the authority to restore the case to the docket to permit
the defendant to prosecute that counterclaim. See Sov-
ereign Bank v. Harrison, 184 Conn. App. 436, 443, 194
A.3d 1284 (2018). A counterclaim ‘‘is a cause of action
. . . on which the defendant might have secured affir-
mative relief had he sued the plaintiff in a separate
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action.’’ (Internal quotation marks omitted.) Historic
District Commission v. Sciame, 152 Conn. App. 161,
176, 99 A.3d 207, cert. denied, 314 Conn. 933, 102 A.3d
84 (2014).
In Sovereign Bank v. Harrison, supra, 184 Conn.
App. 444–47, however, this court clarified that when a
defendant’s pleading filed prior to the plaintiff’s with-
drawal seeks no affirmative relief or redress, but simply
asserts a special defense, that pleading does not survive
the withdrawal. In such a circumstance, the court lacks
the authority to restore a case to the docket to permit
the defendant to seek relief that he was not seeking at
the time of the withdrawal. See id., 443 (‘‘it would be
anomalous to conclude that the court has the authority
to restore a counterclaim to the docket where the defen-
dant had not effectively pleaded a counterclaim’’).
‘‘This court has stated previously that [t]he question
of whether a case should be restored to the docket is
one of judicial discretion . . . therefore, we review a
court’s denial of a motion to restore a case to the docket
for abuse of that discretion.’’ (Footnote omitted; inter-
nal quotation marks omitted.) Doe v. Bemer, supra, 215
Conn. App. 512–13. To the extent that the defendant’s
claim involves a question as to the proper interpretation
of pleadings, however, our review is plenary. Sovereign
Bank v. Harrison, supra, 184 Conn. App. 442. Likewise,
‘‘[a]ny determination regarding the scope of a court’s
. . . authority to act presents a question of law over
which our review is plenary.’’ Tarro v. Mastriani
Realty, LLC, 142 Conn. App. 419, 431, 69 A.3d 956, cert.
denied, 309 Conn. 912, 69 A.3d 308, and cert. denied,
309 Conn. 912, 69 A.3d 309 (2013).
We conclude, on the basis of our review of the record
in this case, that the court did not abuse its discretion
in denying the defendant’s motion to restore. At the time
the plaintiff withdrew this action, the only outstanding
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filing by the defendant on the docket was the defen-
dant’s motion to dismiss and for summary judgment,
which had not yet been fully briefed. This motion was
purely defensive in character. In it, the defendant sought
only dismissal of the action and summary judgment in
his favor on the grounds that the notice to quit and
the complaint were jurisdictionally defective and the
proceeding retaliatory.3 The defendant made no request
for affirmative relief or other redress, nor did he allege
any facts from which the court reasonably could have
inferred that he was entitled to such relief. Given this
court’s holding in Harrison, the court lacked the
authority to restore the case to the docket when the
defendant, following the plaintiff’s withdrawal, sought
to revive the case to litigate requests for relief he had
not made while the case was pending. Moreover,
because the court lacked this authority, we cannot say
that the defendant had any ‘‘vested right’’ to prosecute
his claims in the context of this case.4
The judgment is affirmed.

3
We recognize that, unlike the defendant in Harrison—who only asserted
a special defense—the defendant in this case both asserted a special defense
(retaliatory eviction) and challenged the court’s subject matter jurisdiction.
This distinction, however, does not change our conclusion. This court’s
holding in Harrison—that the court lacks the authority to restore a case
to the docket to prosecute a claim for affirmative relief when no such claim
is pending as of the plaintiff’s withdrawal; see Sovereign Bank v. Harrison,
supra, 184 Conn. App. 447; requires a court to assess whether or not any
defense allegations pending at the time of withdrawal represent a claim for
affirmative relief or redress. If they do not, then the mere fact that they are
made in a different form from the defense at issue in Harrison does not
save them from being erased from the docket when the plaintiff withdraws
the case or mean that the court is authorized to subsequently restore the
case to the docket so that the defendant may prosecute new claims for
affirmative relief. See id., 446, 447 (explaining that court lacked authority
to restore case to docket because ‘‘[n]othing in [the defendant’s] allegation
can reasonably be interpreted as a claim of entitlement to affirmative relief’’
and ‘‘the defendant would not be entitled to any affirmative relief under
this allegation’’).
4
After he filed his principal appellate brief, the defendant filed several
notices of supplemental authority with this court pursuant to Practice Book
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§ 67-10. In his notices, he cites several cases from this court and our Supreme
Court for the proposition that he has a ‘‘vested right’’ to mandatory attorney’s
fees under General Statutes § 42-150bb. We disagree. First, the defendant
never filed a motion for attorney’s fees pursuant to Practice Book § 11-21
and, thus, has not availed himself of the appropriate vehicle for requesting
such fees under § 42-150bb. See Traystman, Coric & Keramidas, P.C. v.
Daigle, 282 Conn. 418, 432, 922 A.2d 1056 (2007). Second, and more funda-
mentally, the defendant has represented himself since the inception of this
case and, therefore, is not entitled to attorney’s fees. See Dunn v. Peter L.
Leepson, P.C., 79 Conn. App. 366, 372, 830 A.2d 325, cert. denied, 266 Conn.
923, 835 A.2d 472 (2003).