Daniel Banks et al. v. Florence Eliza Banks et al. (2012)

MEMORANDUM OF DECISION RE PLEADINGS # 171, 176 AND 180

On October 27, 2006, the plaintiffs, Daniel Banks, individually and as parent and next friend of the minor plaintiffs Alena B. Banks, Keelin B. Banks, and Aiden C. Banks, filed an action for partition and an accounting, against the defendants, Florence Elizabeth Banks, Cassandra Banks, Layla Banks, Philip W. Banks, Therese Banks a/k/a Therese Mines, Christian A. Mines, Adam Mines, Kevin Mattei, and Robert Farrar.   The long procedural history of this case is detailed in this court's July 16, 2010 decision, in which it granted the committee's motion for approval of the contract of sale and motion for possession of the subject premises located at 9 Miltiades Avenue in Greenwich.   In summary, on August 5, 2008, the court granted a judgment of partition by sale against the defendants, and on November 17, 2008, the parties filed a stipulated judgment in court indicating that Florence Elizabeth Banks (the defendant) and Cassandra Banks would leave the property.   Nicholas Granitto, a prospective buyer, signed a purchase and sale agreement for the subject premises on November 26, 2009.

Despite the fact that judgment was rendered in this case over three years ago and a buyer entered into a sales contract for the property more than two years ago, both parties have continued filing numerous pleadings.   At a hearing before this court on September 30, 2011, the court entertained argument on the plaintiffs' motion for supplemental judgment (pleading number 171).   Before the court was able to resolve this motion, the defendant, a self-represented party, ostensibly filed a “writ of error” to the Supreme Court on November 9, 2011 (pleading number 176).¹  On that date, the defendant filed the JD–SC–28 civil appeal form, but checked the box indicating that the “appeal” was directed to the Supreme Court.   Additionally, under the “classification” section, the defendant checked the box marked “other” and hand wrote the words “Writ of Error.”

The purpose of this memorandum of decision is the court's attempt to resolve the legal status of the “writ of error” filed by the defendant on November 9, 2011.   Without any direction from the court, the plaintiffs filed a brief regarding this writ of error on December 20, 2011 (pleading number 180).   In this brief, the plaintiffs argued that in contrast to an ordinary civil appeal,² there is no automatic appellate stay in effect when a party files a writ of error.   Accordingly, the plaintiffs argue that the filing of the defendant's writ of error does not preclude the court from ruling on the pending motion for supplemental judgment.   As a result of the plaintiffs raising the question of whether there is an appellate stay in effect because of the defendant filing a writ of error, the court ordered the parties to appear before it on January 3, 2012 to argue this issue.

Modern-day writs of error are governed by Practice Book §§ 72–1 to 72–4.   These Practice Book sections do not directly address the issue of whether there is a stay of execution after a party files a writ of error.   Nevertheless, two leading treatises on Connecticut appellate procedure both indicate that a stay is in effect.   See W. Horton & K. Bartschi, Connecticut Practice Series:  Connecticut Rules of Appellate Procedure (2011 Ed.) § 61–11, p. 100 (stating that “[t]he filing of a writ of error ․ effects a stay of execution”);  C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed.2000 & 2010 Supplement) § 9.1, p. 353 (stating that “[a] writ of error stays execution of a judgment”).   Both of these secondary sources cite to the Connecticut Supreme Court's decision in Geddes v. Sibley, 116 Conn. 22 (1932), for this proposition of law.   In Geddes, the Supreme Court held that “[a] writ of error effects a supersedeas and stay of execution during its pendency ․ unless the defendant in error obtains an order, as provided for by § 5711 of the General Statutes, that ‘the levy of the execution on the judgment upon which such writ was brought shall not be further suspended by reason of the pendency of the writ.’  “ (Citation omitted.)  Id., 25.   The statute referenced by the Geddes court, § 5711, was later re-codified as General Statutes § 52–278, which provided, in relevant part, that “[i]f, on application, during the pendency of any writ of error, by the defendant in error, to a judge of the Supreme Court and on reasonable notice of the application of the plaintiff in error, it appears to the judge that there is no reasonable or probable cause for the allowance of the writ, he may order ․ that the levy of the execution on the judgment upon which the writ was brought shall not be further suspended by reason of the pendency of the writ.”   Section 52–278 was repealed by the legislature in 2003;  see Public Acts 2003, No. 03–176 § 3;  and there is no existing statute or Practice Book section that provides for a similar procedure for removing an existing stay following the filing of a writ of error.

Accordingly, it seems clear that at least until 2003, there was an automatic stay of execution following a writ of error and the proper way to remove that stay was upon motion to a Supreme Court justice.   Nevertheless, the legislature's subsequent repeal of § 52–278 leaves open the question of whether this remains the correct procedure.   According to the legislative history regarding the enactment of the Public Act 03–176, which repealed § 52–278, the purpose of repealing § 52–278 was so that writs of error would no longer be governed by statutes and would solely be regulated by “the existing rules of practice set out in Chapter 72 of the Rules of Appellate Procedure ․” Testimony of David I. Hemond, Connecticut Law Revision Commission, to the Judiciary Committee, Pt. 12, p. 4176.   Although chapter 72 of the Practice Book is silent as to whether there is a stay following the filing of writ of error generally, Practice Book § 72–4 does state that “[e]xcept as otherwise provided by statute or rule, the prosecution and defense of a writ of error shall be in accordance with the rules for appeals.”   Practice Book § 61–11, which governs civil appeals, provides for an automatic stay of execution in civil cases.³  Consequently, it stands to reason that following the filing of a writ of error, there is an automatic stay in accordance with § 61–11.⁴

The plaintiffs' brief does cite to a number of appellate cases wherein a party ostensibly applied for a stay following a writ of error.   The plaintiffs argue that these cases indicate that there is no longer an automatic stay of execution when there is a pending writ of error.   Although there may be some validity to the plaintiffs' argument, the plaintiffs have failed to provide the court with any citations that clearly establish that there is no stay in effect during the pendency of a writ of error.   Morever, research reveals that the Supreme Court's Geddes decision has never been overturned or otherwise superseded by any statute or Practice Book rule.   Consequently, under these circumstances, the court has to assume the continuing validity of Geddes.   As the plaintiffs have not provided the court with any authority that clearly indicates that a writ of error does not implement an automatic stay of execution, the court is constrained to follow Geddes and conclude that a properly executed writ of error stays execution of a judgment.

Nevertheless, it is apparent that the document filed by the defendant on November 9, 2011 is not a proper writ of error.  Practice Book § 72–1 provides:  “(a) Writs of error for errors in matters of law only may be brought from a final judgment of the superior court to the supreme court in the following cases:  (1) a decision binding on an aggrieved nonparty;  (2) a summary decision of criminal contempt;  (3) a denial of transfer of a small claims action to the regular docket;  and (4) as otherwise necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law ․ (b) No writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification, or (2) the parties, by failure timely to seek a transfer or otherwise, have consented to have the case determined by a court or tribunal from whose judgment there is no right of appeal or opportunity for certification.”   The present matter is a partition action, and the defendant, who is clearly a party to the case, has sought a writ of error with respect to the court's rulings on various motions for which she would certainly have the right of appeal.   When a party brings a writ of error seeking appellate review of a matter that should have been raised in a direct appeal, the writ of error is procedurally improper, and the Appellate Court has held that it should be dismissed.  State v. One or More Persons over Whom the Court's Jurisdiction Has Not Yet Been Invoked, 107 Conn.App. 760, cert. denied, 289 Conn. 912 (2008).   Moreover, as provided by Practice Book § 72–3(b), a writ of error “shall be served and returned as other civil process” to the Supreme Court.   At oral argument before this court on January 3, 2012, the defendant admitted that she has not served the Supreme Court in accordance with this rule.   For these reasons, the court concludes that the defendant has likely filed an improper writ of error.⁵

While the court recognizes the imperfections in the defendant's “writ of error,” this court is unsure how to proceed.   If there is a valid writ of error, there is a stay of execution of the judgment.   At the same time, if the defendant's writ of error is improperly executed, it seems unfair to make the plaintiffs wait until the legal validity of the writ of error is resolved.   Although it may be tempting for this court to use the imperfections in the defendant's writ of error as a justification for ruling on the pending motion for supplemental judgment, this court is not a justice of the Supreme Court.   Once an appellate stay is in effect, this court lacks the authority to rule on a pending motion.   If the plaintiffs believe that the defendant's writ of error is improper and should be dismissed, they should file an appropriate motion with the Supreme Court that would allow the Supreme Court to resolve validity of the writ of error.   In the meantime, this court is forced to abide by the appellate stay.

Additionally, it should be noted that the court has reviewed the plaintiffs' motion for supplemental judgment.   The court finds that almost all of the amounts provided by the plaintiffs are correct, fair and equitable, especially since the plaintiffs could have deducted costs for the defendant's use and occupancy of the premises, but chose not to.   Specifically, the court finds that the total proceeds from the sale of the property were $612,494.44 (representing the sale proceeds plus the accrued interest on the purchaser's deposit.)   After deducting $78,290.77 for committee fees and expenses, the broker's commission, the appraiser's testimony and delinquent real estate taxes owed to the town of Greenwich, the remaining $534,203.67 should be distributed as follows:

a) Daniel Banks—23.675 percent or $126,472.71.  (Exhibits A & B.) 6

b) Philip Wilbur Banks—23.675 percent or $126,472.71.  (Exhibits A & B.)

c) Cassandra Banks—6.125 percent or $32,719.97.  (Exhibit B.)

d) Layla Banks—6.125 percent or $32,719.97.  (Exhibit B.)

e) Florence Banks—5.3 percent or $28,312.79.  (Exhibit A.)

f) Therese Banks—5.3 percent or $28,312.79.  (Exhibit A.)

g) Christian Mines—4.08 1/3 percent or $21,813.32.  (Exhibit B.)

h) Adam Mines—4.08 1/3 percent or $21,813.32.  (Exhibit B.)

i) Kevin Mattei—4.08 1/3 percent or $21,813.32.  (Exhibit B.)

j) Alena Banks—4.08 1/3 percent or $21,813.32.  (Exhibit B.)

k) Keelin Banks—4.08 1/3 percent or $21,813.32.  (Exhibit B.)

l) Aiden Banks—4.08 1/3 percent or $21,813.32.  (Exhibit B.)

In the plaintiffs' motion for supplemental judgment, the plaintiffs also request that the court award a 5.3 percent interest in the proceeds from the sale of the subject premises to Robert Farrar.   The evidence attached to the motion for supplemental judgment does not establish that Farrar has any ownership interest in the property at issue.   Furthermore, although Farrar was named as a defendant in this matter's initial complaint, this complaint, and all subsequent complaints, do not reference him in any way.   The court's thorough examination of the file also failed to reveal the source of Farrar's interest in the property.   Although it appears as though Farrar is taking the 5.3 percent interest of the now-deceased “Lisa Marie Banks of Laurel, Maryland;” see Exhibit A;  there is no evidence demonstrating his legal entitlement to same.   Therefore, even if the court were of the opinion that there is no appellate stay in effect, the court cannot award Farrar any sales proceeds until it has received some evidence detailing Farrar's connection, if any, to the property.⁷

In conclusion, the court determines that it would grant the majority of the plaintiffs' motion for supplemental judgment if there was no appellate stay in effect due to the defendant filing a writ of error.   For now, the court holds that it lacks jurisdiction to rule on the supplemental judgment motion until such time as the Supreme Court resolves the defendant's writ of error.   The court will await further direction from the Supreme Court when, and if, it issues any ruling on the defendant's writ of error.

BY THE COURT

MINTZ, J.

FOOTNOTES

FN1. Specifically, the defendant is seeking appellate review on the following rulings:  “Memorandum of Decision Re:  Motion for Advice # 138, Motion for Approval of Contract # 140, Possession 143, Summary Judgment.”.  FN1. Specifically, the defendant is seeking appellate review on the following rulings:  “Memorandum of Decision Re:  Motion for Advice # 138, Motion for Approval of Contract # 140, Possession 143, Summary Judgment.”

FN2. See Practice Book § 61–11, which is titled “Stay of Execution in Noncriminal Cases.”.  FN2. See Practice Book § 61–11, which is titled “Stay of Execution in Noncriminal Cases.”

FN3. Notably, writs of error are not listed in Practice Book § 61–11(b), which provides for types of actions in which there is no automatic stay..  FN3. Notably, writs of error are not listed in Practice Book § 61–11(b), which provides for types of actions in which there is no automatic stay.

FN4. The plaintiffs' brief cites to some language which seemingly indicates that the automatic stay provisions would only apply to “a writ of error, where those matters arise from a criminal conviction or sentence.”   Although the plaintiffs' brief indicates that this language comes from Practice Book § 61–11, it is actually located in Practice Book § 61–13, which is titled “Stay of Execution in Criminal Cases.”  (Emphasis added.)   Consequently, any language found in § 61–13 is not applicable to the present case..  FN4. The plaintiffs' brief cites to some language which seemingly indicates that the automatic stay provisions would only apply to “a writ of error, where those matters arise from a criminal conviction or sentence.”   Although the plaintiffs' brief indicates that this language comes from Practice Book § 61–11, it is actually located in Practice Book § 61–13, which is titled “Stay of Execution in Criminal Cases.”  (Emphasis added.)   Consequently, any language found in § 61–13 is not applicable to the present case.

FN5. It should also be noted that pursuant to Practice Book § 72–2, all writs of error “shall contain in numbered paragraphs the facts upon which the petitioner relies and a statement of the relief claimed.”   The Supreme Court has held that “a trial court ․ may reject and return any writ that does not conform with Practice Book § 72–2 ․” Morrison v. Parker, 261 Conn. 545, 552–53 (2002).   The document filed by the defendant with the court on November 9, 2011 clearly does not comply with the requirements of § 72–2.   Therefore, the court had discretion to return it to the defendant..  FN5. It should also be noted that pursuant to Practice Book § 72–2, all writs of error “shall contain in numbered paragraphs the facts upon which the petitioner relies and a statement of the relief claimed.”   The Supreme Court has held that “a trial court ․ may reject and return any writ that does not conform with Practice Book § 72–2 ․” Morrison v. Parker, 261 Conn. 545, 552–53 (2002).   The document filed by the defendant with the court on November 9, 2011 clearly does not comply with the requirements of § 72–2.   Therefore, the court had discretion to return it to the defendant.

FN6. The exhibits attached to the plaintiffs' motion for supplemental judgment are orders of the Greenwich Probate Court.   Exhibit A is dated April 9, 1991, and Exhibit B is dated June 6, 2006.   These exhibits represent the distribution of the estates of Philip John Banks and Florence Edith Banks..  FN6. The exhibits attached to the plaintiffs' motion for supplemental judgment are orders of the Greenwich Probate Court.   Exhibit A is dated April 9, 1991, and Exhibit B is dated June 6, 2006.   These exhibits represent the distribution of the estates of Philip John Banks and Florence Edith Banks.

FN7. The court recognizes that counsel for Farrar filed a “memorandum in support of the motion for supplemental judgment” on January 23, 2012.   Attached to this memorandum are pieces of evidence that are neither certified nor otherwise authenticated by affidavit.   As this memorandum was not filed until nearly four months after the motion for supplemental judgment was argued before the court and the evidence is not properly authenticated, the court will not consider it.   Farrar is invited to file his own motion for supplemental judgment if, and when, the stay is lifted following the Supreme Court's disposition of the defendant's writ of error..  FN7. The court recognizes that counsel for Farrar filed a “memorandum in support of the motion for supplemental judgment” on January 23, 2012.   Attached to this memorandum are pieces of evidence that are neither certified nor otherwise authenticated by affidavit.   As this memorandum was not filed until nearly four months after the motion for supplemental judgment was argued before the court and the evidence is not properly authenticated, the court will not consider it.   Farrar is invited to file his own motion for supplemental judgment if, and when, the stay is lifted following the Supreme Court's disposition of the defendant's writ of error.

Mintz, Douglas C., J.