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DEUTSCHE BANK NATIONAL TRUST COMPANY v.
DAWN FRITZELL ET AL.
(AC 38555)
DiPentima, C. J., and Alvord and Bear, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant. The trial court granted the plaintiff’s motion
for a judgment of strict foreclosure and rendered judgment thereon.
Notice of the filing of the plaintiff’s motion for a judgment of strict
foreclosure and the court’s judgment of strict foreclosure were sent to
an address that the defendant had provided on an appearance form he
filed with the clerk’s office. Because no party exercised its right to
redemption, title to the property subject to the foreclosure vested in
the plaintiff. Thereafter, the defendant filed a motion to open the judg-
ment and extend the law days, claiming that he did not receive notice
of the plaintiff’s motion for a judgment of strict foreclosure or of the
court’s judgment because he no longer lived at the address that he had
provided on the appearance form. The defendant did not file a new
appearance form reflecting his change of address. The trial court denied
the defendant’s motion to open, finding that the defendant received the
process he was due because the plaintiff and the court properly sent
notice to the address provided by the defendant. On the defendant’s
appeal to this court, held that because notices of the plaintiff’s motion
and the court’s judgment were sent to the address that the defendant
provided on his appearance form, the trial court properly concluded
that the defendant received the notice he was due, and, consequently,
title to the subject property vested absolutely in the plaintiff following
the passing of the law days; accordingly, the defendant’s motion to open
was moot when it was filed approximately two months after the vesting
of title, as there was no practical relief that the trial court could have
granted the defendant at that time, and, therefore, the court should have
dismissed the motion to open as moot instead of denying it.
Argued September 7—officially released November 6, 2018
Procedural History
Action to foreclose a mortgage on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where the court, Maronich, J., granted the plain-
tiff’s motion for summary judgment as to liability; there-
after, the court, Ecker, J., granted the plaintiff’s second
motion for judgment of strict foreclosure and rendered
judgment thereon; subsequently, the court, Ecker, J.,
denied the defendant’s motion to open the judgment,
and the defendant appealed to this court. Reversed;
judgment directed.
Clifford D. Fritzell, III, self-represented, the appel-
lant (defendant).
Victoria L. Forcella, with whom, on the brief, was
S. Bruce Fair, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant, Clifford D. Fritzell, III,1
appeals from the trial court’s denial of his motion to
open the judgment of strict foreclosure rendered in
favor of the plaintiff, Deutsche Bank National Trust
Company.2 On appeal, the defendant claims that the
trial court (1) erroneously denied his motion to open
(2) erred by failing to vacate its order setting the law
days for February 17 and 18, 2015 (3) improperly placed
the burden on him to demonstrate lack of notice of the
plaintiff’s motion for judgment of strict foreclosure and
(4) erred by penalizing him for being a former attorney.
The first two claims involve the defendant’s central
argument that, contrary to the conclusion of the trial
court, notice of the plaintiff’s motion for judgment of
strict foreclosure and the court’s judgment of foreclo-
sure sent to the address the defendant had provided
on his appearance form did not sufficiently notify him
of the proceedings against him. We agree with the court
that the defendant received the notice to which he was
entitled, but conclude that because there was no practi-
cal relief available to the defendant, the court should
have dismissed the motion to open instead of denying it.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claims on
appeal. In August, 2011, the plaintiff commenced the
underlying action to foreclose a mortgage on certain
real property located at 282 North High Street in East
Haven. The plaintiff filed a motion for judgment of strict
foreclosure on December 13, 2011, which was granted
on January 3, 2012. According to the defendant, service
of process and notice of the judgment were mistakenly
sent to the address of the defendant’s father, who shares
the same name as the defendant. The defendant repre-
sents that he subsequently learned of the foreclosure
action and judgment from his father. The defendant
filed a motion to open the judgment on February 21,
2012. This motion was heard and granted on March
12, 2012.
On March 12, 2012, the defendant filed an appearance
with the court, providing his address as 131 Mulberry
Point Road in Guilford. On March 26, the defendant
filed a motion to dismiss the action, arguing that he
was not served at his address. On April 10, the plaintiff
filed an objection to the defendant’s motion to dismiss,
arguing, inter alia, that the defendant received actual
notice. On April 11, the plaintiff filed a motion to cite
in the defendant, stating that the defendant may not
have been properly served. The court granted the
motion to cite in the defendant on April 26, and the
summons and complaint were served on the defendant
at 131 Mulberry Point Road in Guilford. On April 30,
the court denied the defendant’s motion to dismiss.3
On February 1, 2013, the plaintiff filed a motion for
summary judgment as to liability, which was granted
on April 22, 2013. On December 12, 2014, the plaintiff
filed a second motion for judgment of strict foreclosure.
On January 6, 2015, the court granted the plaintiff’s
motion and rendered a judgment of strict foreclosure,
setting the law days for February 17 and 18, 2015. On
February 19, 2015, because no party exercised its right
to redemption, title to the property subject to the fore-
closure vested in the plaintiff.
Notice of both the filing of the plaintiff’s motion for
judgment of strict foreclosure and the court’s judgment
were sent to 131 Mulberry Point Road in Guilford, the
address that the defendant had provided on the appear-
ance form he filed with the clerk of court. The defendant
represents, however, that he no longer lived at 131
Mulberry Point Road in Guilford. The defendant pro-
vided that, in August, 2013, he had moved to the prop-
erty subject to the foreclosure, located at 282 North
High Street in East Haven. He did not file a new appear-
ance form reflecting this change of address.
The defendant claims that he became aware of the
judgment of strict foreclosure in March, 2015, through
his wife, who ‘‘perus[ed] the case activity periodically.’’
On April 7, the defendant filed a motion to open the
judgment and extend the law days. On May 26, the
trial court, Ecker, J., held a hearing on the defendant’s
motion to open the judgment. During the hearing, the
defendant claimed that he did not receive notice of the
plaintiff’s motion for judgment of strict foreclosure or
notice of the court’s judgment of strict foreclosure. In
addition, he argued that if he had received notice, he
could have transferred the mortgage to his wife. The
plaintiff argued that its pleadings, as certified in the
certification page, and the court’s notice were sent to
the defendant’s address of record with the court at the
time. In response, the defendant argued that he had
been sending the plaintiff correspondence from an
address in Old Saybrook, and therefore, the plaintiff
knew that the defendant was living at a different address
than the address he provided on his appearance form.
At the conclusion of the hearing, the court issued an
oral ruling denying the defendant’s motion. The court
found that the defendant received the process he was
due. It explained that, because the defendant filed an
appearance with the court, providing his address as 131
Mulberry Point Road in Guilford, the plaintiff and the
court were entitled to rely on it. At the hearing, when
discussing that the defendant should have filed an
updated appearance form indicating his new address,
the court stated: ‘‘[Y]ou’re a lawyer, you should know
better.’’ The court concluded that, because notices of
the plaintiff’s motion and the court’s judgment were
sent to the address the defendant provided, the defen-
dant received sufficient notification of the proceedings.
This appeal followed.
The plaintiff asserts that this court should dismiss
this appeal for mootness because the defendant no
longer has any legal interest in the property. The crux
of the claim is that title in the plaintiff became absolute
following the passing of the law days without redemp-
tion by any defendant, and that date having passed
before the defendant filed his motion to open, the defen-
dant can no longer be provided with practical relief.4
Highgate Condominium Assn., Inc. v. Miller, 129
Conn. App. 429, 434–35, 21 A.3d 853 (2011) (‘‘It is a
general rule that a judgment of strict foreclosure ordi-
narily cannot be opened after the law day has passed
. . . . Once title has vested, no practical relief is avail-
able.’’ [Internal quotation marks omitted]).
‘‘Because [m]ootness implicates [this] court’s subject
matter jurisdiction and is thus a threshold matter for
[it] to resolve . . . ordinarily, we would be required
to address that issue first, before considering the merits
of [an] appeal. This is so because [i]t 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.’’ (Citation omitted; internal quotation
marks omitted.) Argent Mortgage Co., LLC v. Huertas,
288 Conn. 568, 575, 953 A.2d 868 (2008).
In this case, however, as in Argent Mortgage Co.,
LLC,5 the issue of mootness is ‘‘inextricably inter-
twined’’; id.; with the issue raised by the defendant
on appeal, namely, whether the trial court improperly
denied his motion to open despite his claim that he did
not receive notice of the judgment and therefore could
not exercise his right of redemption. In other words,
our determination of whether the defendant can be
granted any practical relief depends on whether the
defendant was given the notice to which he was entitled
when judgment was entered against him, or whether
the judgment violated the defendant’s right to due pro-
cess. We therefore turn to that issue.
The defendant claims that the court should have
opened the judgment of strict foreclosure because he
did not receive sufficient notice of the judgment and,
therefore, could not exercise his right of redemption.6
He argues that the notice provided was insufficient to
satisfy due process. We disagree.
‘‘[D]ue process does not require that a property owner
receive actual notice’’ of an action before being
deprived of his or her property. Cornelius v. Rosario,
138 Conn. App. 1, 14, 51 A.3d 1144, cert. denied, 307
Conn. 934, 56 A.3d 713 (2012), cert. denied sub nom.
Cornelius v. Nelson, U.S. , 134 S. Ct. 386, 187 L. Ed.
2d 28 (2013). ‘‘Rather, we have stated that due process
requires the government to provide notice reasonably
calculated, under all the circumstances, to apprise inter-
ested parties of the pendency of the action and afford
them an opportunity to present their objections.’’ (Inter-
nal quotation marks omitted.) Id.
The defendant was entitled to notice of the plaintiff’s
motion for judgment of strict foreclosure as well as
notice of the court’s judgment.7 The defendant does not
challenge the fact that notices of both the motion and
judgment were sent to the address he provided on his
appearance form.8 The appearance form filed by the
defendant contained the following notice to self-repre-
sented parties: ‘‘A self-represented party is a person
who represents himself or herself. If you are a self-
represented party and you filed an appearance before
and you have since changed your address, you must let
the court and all attorneys and self-represented parties
of record know that you have changed your address
by checking the box below . . . I am filing this appear-
ance to let the court and all attorneys and self-repre-
sented parties of record know that I have changed my
address. My new address is below.’’ Thus, the form
explicitly informs the filer of his or her obligation to
give notice of each new address.
Sending notice to the defendant’s address as listed
on his appearance form provided the defendant with
the process that he was due. Although the defendant
claims that he did not receive actual notice of the judg-
ment until after the passing of the law days, the notices
sent in compliance with the rules of practice reasonably
were calculated to notify the defendant of the action,
which is what due process requires. See Cornelius v.
Rosario, supra, 138 Conn. App. 14.
The defendant filed an appearance providing his
address as 131 Mulberry Point Road in Guilford, the
address to which the notice was sent.9 The defendant
himself concedes that ‘‘[t]he purpose of [the appearance
form] is to make the other parties aware of how to
contact . . . one another.’’ Here, by filing the appear-
ance and providing 131 Mulberry Point Road in Guilford
as his address, the defendant was notifying the court
and the plaintiff that he wanted to be contacted at that
address.10 See Practice Book § 3-7 (b). Thus, notices
sent to that address reasonably were calculated to
notify the defendant of the action, and therefore the
court did not deprive the defendant of due process.
In summary, because notices of the plaintiff’s motion
and the court’s judgment were sent to the address that
the defendant provided on his appearance form, the
court properly concluded that the defendant received
the notice he was due. Consequently, title to the 282
North High Street property vested absolutely in the
plaintiff on February 19, 2015, following the passing of
the law days. In light of that fact, the defendant’s motion
to open was moot when it was filed on April 7, 2015,
approximately two months after the vesting of title,
because there was no practical relief that the trial court
could have granted the defendant at that time. See
Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn.
581–582 (after title had vested absolutely in plaintiff,
court should have dismissed, rather than denied, late
motion to open); see also Citigroup Global Markets
Realty Corp. v. Christiansen, 163 Conn. App. 635, 640,
137 A.3d 76 (2016) (same). Accordingly, instead of deny-
ing the defendant’s motion to open, the trial court
should have dismissed it as moot.
The form of the judgment is improper, the judgment
is reversed and the case is remanded with direction to
dismiss the defendant’s motion to open the judgment
of strict foreclosure as moot.
In this opinion the other judges concurred.
1
Dawn Fritzell and Hospital of Saint Raphael were named as defendants
in this action, but they are not participating in this appeal. Therefore, all
references in this opinion to the defendant are to Clifford D. Fritzell, III.
2
The plaintiff is acting as trustee for New Century Home Equity Loan
Trust 2005-2.
3
The defendant does not challenge service of process on appeal.
4
The plaintiff claims that title to the property in question became absolute
in the plaintiff approximately two months before the defendant filed his
motion to open, which precludes resorting to General Statutes § 49-15 (a).
Section 49-15 (a) (1) provides, in relevant part, that ‘‘no [judgment of strict
foreclosure] shall be opened after the title has become absolute in any
encumbrancer . . . .’’
Section 49-15 (a) (1) also provides, in relevant part, that ‘‘[a]ny judgment
foreclosing the title to real estate by strict foreclosure may, at the discretion
of the court rendering the judgment, upon the written motion of any person
having an interest in the judgment and for cause shown, be opened and
modified. . . .’’ (Emphasis added). One of the defendant’s claims on appeal
is that the court improperly placed the burden on him to demonstrate lack
of notice of the plaintiff’s motion for judgment of strict foreclosure. This
claim is without merit. ‘‘Cause’’ under § 49-15 means good cause, and the
movant bears the burden of establishing it. Connecticut National Bank v.
Zuckerman, 29 Conn. App. 541, 546, 616 A.2d 814 (1992) (‘‘[i]t was the
defendants’ burden to establish the existence of good cause to be entitled
to an opening of the judgment pursuant to General Statutes § 49-15’’). Thus,
the court properly placed the burden on the defendant—the movant—to
establish the existence of good cause, namely, his claim of insufficient notice.
5
Although the defendant’s claim here involves defective notice of the
foreclosure judgment, and not defective service of process as in Argent
Mortgage Co., LLC, the rationale of that case applies by analogy to this
appeal.
6
The defendant also claims that ‘‘[t]he court erred when it identified an
appearance form on file that was clearly no longer accurate with regards
to the defendant’s address and penalized him because he was a former
attorney.’’ The defendant bases this claim on the court’s statement that
‘‘you’re a lawyer, you should know better,’’ when it told the defendant that
he should have filed an updated appearance form with his new address.
From the record, it is clear that the court did not deny the defendant’s
motion on the basis of the defendant being a former attorney. Rather, the
court found that the defendant received sufficient notice of the court’s
judgment because notice was sent to the address the defendant provided
on his appearance form. In addition, the defendant cites no authority for
the proposition that this single remark amounts to error.
7
Practice Book § 10-12 (a) provides in relevant part that ‘‘[i]t is the respon-
sibility of counsel or a self-represented party filing the same to serve on
each other party who has appeared one copy of every pleading subsequent
to the original complaint, every written motion other than one in which an
order is sought ex parte . . . .’’ Practice Book § 10-13 further provides in
relevant part that ‘‘[s]ervice upon the attorney or upon a self-represented
party . . . may be by delivering a copy or by mailing it to the last known
address of the attorney or party.’’ Regarding notice of judgment, Practice
Book § 7-5 provides in relevant part that ‘‘[t]he clerk shall give notice, by
mail or electronic delivery, to the attorneys of record and self-represented
parties . . . of all judgments, nonsuits, defaults, decisions, orders and rul-
ings unless made in their presence.’’ In addition, JDNO notice is used to
indicate that notice of a decision or order has been sent by the clerk’s office
to all parties of record and raises a presumption that notice was sent and
received in the absence of a finding to the contrary. McTiernan v. McTier-
nan, 164 Conn. App. 805, 808 n.2, 138 A.3d 935 (2016).
8
Practice Book § 3-3 (a) explains that an appearance includes the mailing
address of the party for whom the appearance is being filed. Practice Book
§ 3-7 (b), governing the consequences of filing an appearance, provides
in relevant part: ‘‘After the filing of an appearance, the attorney or self-
represented party shall receive copies of all notices required to be given to
parties by statute or by these rules.’’
9
The defendant contends that he should have received notice at the
property subject to the foreclosure, located at 282 North High Street in East
Haven. He did not file an appearance form providing this address, however,
until April 1, 2015—almost two months after the law days passed and less
than a week before he filed his motion to open.
10
As the court pointed out at the hearing on the defendant’s motion to
open, the plaintiff and the court are not only permitted, but required to use
the address on the appearance form. In Branford v. Van Eck, 86 Conn. App.
441, 445, 861 A.2d 560 (2004), cert. denied, 272 Conn. 922, 867 A.2d 839
(2005), the defendant filed a self-represented appearance in which he gave
an address to which all pleadings were to be sent. The plaintiff in that case
failed to mail several pleadings to that address, instead sending them to the
property subject to the foreclosure and another address it found for the
defendant. Id., 444. On appeal, this court concluded that the trial court
correctly denied the plaintiff’s motion to default the defendant due to the
plaintiff’s failure to certify service to the defendant at his address of record.
Id., 445. The court further stated that it did ‘‘not condone the actions of the
plaintiff’s counsel’’ in electing to mail pleadings to the subject property and
a putative address rather than to his address of record. Id. Overall, the court
in Branford emphasizes the importance of sending notice to the address of
record in accordance with a party’s appearance form.