Cummings Enterprise, Inc. v. Moutinho

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CUMMINGS ENTERPRISE, INC. v.
MANUEL MOUTINHO, TRUSTEE
(AC 44437)
Prescott, Moll and Pellegrino, Js.

Syllabus

The plaintiff sought to foreclose a mortgage on certain real property owned
by the defendant. The trial court granted the defendant’s motion to
dismiss, concluding that the plaintiff lacked standing to bring a foreclo-
sure action because any mortgage interest the plaintiff had held in the
subject property had been foreclosed in an earlier action brought by the
defendant, and the plaintiff appealed to this court. After the defendant’s
attorney, in his brief to this court, refuted certain factual representations
made by the plaintiff’s attorney in the plaintiff’s principal brief, the
plaintiff’s attorney failed to clarify the matter in the plaintiff’s reply brief.
During oral argument before this court, when the plaintiff’s attorney was
questioned about the disputed factual representations, he was unable
or unwilling to vouch for the veracity of those statements, did not direct
the court’s attention to any relevant portion of the record, and did not
provide any citation to the record to support those factual assertions.
Approximately one month later, the plaintiff’s attorney filed a motion
with this court for leave to correct the plaintiff’s brief. Held:
1. The plaintiff could not prevail on its challenge to the trial court’s dismissal
of its action; because the plaintiff, who was defaulted for failure to
appear in the prior foreclosure action brought by the defendant, made
no effort to redeem on or before its designated law day, its mortgage
interest was extinguished and, after all law days had passed, title to the
property vested in the defendant, leaving the property no longer subject
to the plaintiff’s mortgage.
2. This court denied the motion for leave to correct the plaintiff’s brief filed
by the plaintiff’s attorney as untimely: the plaintiff’s attorney waited too
long to correct the misrepresentations, and his effort to remedy them
in their entirety was lacking; moreover, the plaintiff’s attorney was
placed on notice that future, similar conduct would result in the imposi-
tion of sanctions and/or professional discipline.
Argued January 6—officially released March 8, 2022

Procedural History

Action to foreclose a mortgage on certain real prop-
erty owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district
of Fairfield, where the court, Spader, J., granted the
defendant’s motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed; motion denied.
Kenneth A. Votre, for the appellant (plaintiff).
James M. Nugent, for the appellee (defendant).
Opinion

PER CURIAM. The plaintiff, Cummings Enterprise,
Inc., appeals from the judgment of the trial court dis-
missing for lack of standing its foreclosure action
brought against the defendant, Manuel Moutinho, Trustee
for the Mark IV Construction Co., Inc., 401 (K) Savings
Plan. The court granted the defendant’s motion to dis-
miss, concluding that the plaintiff lacked standing to
bring a foreclosure action because any mortgage inter-
est that the plaintiff once may have held with respect
to the subject property, an undeveloped building lot in
Stratford, had been foreclosed in an earlier foreclosure
action brought by the defendant. Because the plaintiff,
who was defaulted for failure to appear in the prior
foreclosure action, made no effort to redeem on or
before its designated law day, its mortgage interest was
extinguished, and, after all law days had passed, title
to the property vested in the defendant, leaving the
property no longer subject to the plaintiff’s mortgage.
On appeal, the plaintiff raises a number of convoluted
arguments challenging the court’s granting of the
motion to dismiss. On the basis of our thorough review
of the record, briefs, and applicable law, we conclude
that the plaintiff’s arguments are devoid of merit.
Accordingly, we affirm the judgment of the trial court.
Although further discussion regarding the merits of
the plaintiff’s appeal is unwarranted, we take this oppor-
tunity briefly to address certain factual misrepresenta-
tions contained in the plaintiff’s brief on appeal. The
plaintiff’s principal argument before the trial court
regarding its standing to pursue the underlying foreclo-
sure action was that the law days that the court set in
the defendant’s previous foreclosure action purportedly
had passed without legal effect due to a bankruptcy
stay or extension period that arose as a result of the
filing of a bankruptcy petition by 10-5th, LLC, an entity
that allegedly had acquired an ownership interest in the
subject property. In its appellate brief, the plaintiff made
the following factual assertions: ‘‘10-5th, LLC, is an
entity that was a party to the previous foreclosure action
and at one point held title to the subject property,’’ and
‘‘[t]he trial court, in the previous foreclosure, was asked
to reset the law days after the dismissal of 10-5th, LLC’s
bankruptcy proceeding.’’ The plaintiff provided no cita-
tion to the record to support these factual assertions,
although the brief contained citations to the record with
respect to other factual statements. See Practice Book
§ 67-4.1 In its appellee’s brief, the defendant stated that
these factual representations by the plaintiff were false
and that it is clear from the record that 10-5th, LLC,
was never a party to the defendant’s foreclosure action
and no one ever had asked the trial court to reset the
law days after the dismissal of 10-5th, LLC’s bankruptcy
petition. In its reply brief, the plaintiff’s only response
to the defendant’s assertion that the plaintiff’s brief
contained false factual representations was that the
parties ‘‘differ somewhat in their description of the
underlying facts in this case.’’ The plaintiff again
referred to 10-5th, LLC, as ‘‘one defendant’’ in the previ-
ous foreclosure action, implying once again, without
any supporting citation to the record, that 10-5th, LLC,
was a party to that action.
During oral argument before this court, the panel
asked the attorney for the plaintiff, Kenneth A. Votre,
about the disputed factual representations and his fail-
ure either to clarify the matter in his reply brief or, if
necessary, to make corrections to the brief prior to oral
argument. Although he asserted on the one hand that
he and/or his staff had verified the veracity of the state-
ments in the brief prior to oral argument, he was unwill-
ing or unable to vouch for the veracity of those state-
ments, could not direct the court’s attention to any
relevant portion of the record, and claimed that, despite
the purported efforts to verify the facts, he might still
be mistaken. Nearly a month after oral argument, the
plaintiff filed a motion with this court titled a ‘‘Request
For Leave To Correct Appellant’s Brief.’’ In that motion,
the plaintiff states that, ‘‘[a]t oral argument it, albeit
late, became apparent to counsel that 10-5th, LLC, was,
in fact, not a party to the prior foreclosure action
. . . .’’ There is no explanation for why this error
occurred and why, despite it having been brought to
counsel’s attention by his opponent, Attorney Votre
failed to correct the misrepresentations in his reply brief
or at oral argument. Instead, counsel took an additional
month to correct his error. The motion also makes
no mention of the other factual misstatement in the
plaintiff’s brief, namely, that, following the dismissal of
10-5th, LLC’s bankruptcy action, a request was made
to the court in the prior foreclosure action to reset the
law days. Nevertheless, this fact is removed from the
proposed amended fact section appended to the plain-
tiff’s motion.
Attorneys have an obligation to act fairly and with
candor in all of their dealings before the court, which
includes factual statements made in open court or in
pleadings and other written submissions. See, e.g., Dan-
iels v. Alander, 75 Conn. App. 864, 879, 818 A.2d 106
(2003), aff’d, 268 Conn. 320, 844 A.2d 182 (2004). That
obligation is codified in rule 3.3 (a) of the Rules of
Professional Conduct, titled ‘‘Candor toward the Tribu-
nal,’’ which provides in relevant part: ‘‘A lawyer shall
not knowingly . . . (1) [m]ake a false statement of fact
or law to a tribunal or fail to correct a false statement
of material fact or law previously made to the tribunal
by the lawyer . . . .’’ Although, as stated in the com-
mentary to the rule, ‘‘a lawyer in an adversarial proceed-
ing is not required to present an impartial exposition
of the law or to vouch for the evidence submitted in a
cause, the lawyer must not allow the tribunal to be
misled by false statements of law or fact or evidence
that the lawyer knows to be false.’’ (Emphasis added.)
Here, the plaintiff’s attorney was provided with a num-
ber of opportunities in which he could have verified
the veracity of the factual representations he made to
this court and, if necessary, corrected any misstate-
ments that were made. In our view, counsel for the
plaintiff waited far too long to correct the misrepresen-
tations, and his effort to remedy them in their entirety
is lacking. Accordingly, because we view his request
for leave to correct the appellant’s brief as untimely,
we deny it. Counsel for the plaintiff is placed on notice
that future, similar conduct will result in the imposition
of sanctions and/or professional discipline.
The judgment is affirmed.
1
Practice Book § 67-4, which governs the content and organization of the
appellant’s brief, provides in relevant part: ‘‘The appellant’s brief shall con-
tain the following . . . (d) A statement of the nature of the proceedings
and of the facts of the case bearing on the issues raised. The statement of
facts shall be in narrative form, shall be supported by appropriate references
to the page or pages of the transcript or to the document upon which the
party relies and shall not be unnecessarily detailed or voluminous. . . .’’
(Emphasis added.)