Bank of Stamford v. Richard Schlesinger et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS DATED JULY 3, 2013 (# 143.00)

This motion to dismiss tests the chronological limits of the well-known proposition that a party may contest subject matter jurisdiction at any time.

As seen by the docket number, this lawsuit seeking collection of a promissory note was returnable on March 27, 1990.   From looking at this Motion to Dismiss, it could be argued that this lawsuit is still in the pleading stage, some twenty-three years after the return date.

If the jurisdiction that is found lacking, is jurisdiction over the person, not the subject matter;  it is waived if not timely challenged by a motion to dismiss filed within the thirty-day time period of Practice Book § 10–32.   “Any claim of lack of jurisdiction over the subject matter cannot be waived;  and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”  Practice Book § 10–33.   There is no time limit on challenging subject matter jurisdiction.

This court has written on this subject:

A Motion to Dismiss alleging lack of subject matter jurisdiction must be considered by the court and acted on, no matter at what stage of the proceedings the issue is raised.   It may be considered at the earliest stage of the pleadings in the order permitted by Practice Book § 112.   It can be considered after an answer has been filed, after the pleadings have been closed, during the trial, after judgment has been entered or by the Appellate Court or Supreme Court on appeal, either sua sponte or by motion of the parties.  Kolenberg v. Board of Education, 206 Conn. 113, 124 (1988).

Greenwich Plaza, Inc. v. Whitman and Ransom, Superior Court, judicial district of Stamford/Norwalk, Housing Session at Norwalk, Docket Number 9505–4081 (March 19, 1996, Tierney, J.).

The parties submitted the Motion to Dismiss on the pleadings alone.   No additional documents were submitted.   The parties waived testimony.   Standard Tallow Corporation v. Jowdy, 196 Conn. 48, 56 (1983).  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light.”  Electrical Contractors, Inc. v. Department of Education, 303 Conn. 402, 422, n.17 (2012).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․ (Internal quotation marks omitted.)  Cogswell v. American Transit Insurance Company, 282 Conn. 505, 516 (2007).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430, n.12 (2003).   “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 113 (2009).

Although the file contains pleadings and documents in addition to the complaint and the Motion to Dismiss requests relief as to some of those additional documents, the parties have agreed to proceed on the pleadings in the file.   These pleadings are not factual affidavits or evidentiary type documents attached to pleadings, discovery compliance, requests to admit and the like.   The court therefore will consider the allegations of the complaint in their most favorable light and admit all facts well pleaded.  Cogswell v. American Transit Insurance Company, supra, 282 Conn. 516.

Brendan P. Leydon of the law firm of Tooher, Wocl & Leydon, LLC, the current lawyer for the defendant, Richard Schlesinger, filed his appearance on July 3, 2013 and on the same day filed this Motion to Dismiss (# 143.00).   Mr. Schlesinger had previously been represented by counsel of record, Epstein, Fogarty, Cohen, and Selby, whose predecessor law firm Epstein and Fogarty appeared for Richard Schlesinger on October 28, 1991.   No motion was filed in the interim requesting the relief addressed in this current Motion to Dismiss.

The one-sentence Motion to Dismiss requests a plethora of relief:

“The Defendant Richard Schlesinger hereby moves that the court dismiss the non-party Cadles of Grassy Meadows II, LLC (‘Cadles') from this action, and vacate all actions taken by it, including alleged stipulations improperly filed in this action (entries # 130.10–132.10, filed on July 14, 2008) as well as a motion for order nunc pro tunc (entry # 133.00, filed on February 16, 2011) and order entered on same (entry # 133.86, filed on March 14, 2011), for improper service of process as required by Connecticut General Statutes § 52–350e and for Cadles lack of standing to file such papers, as more fully explained in the attached memorandum of law.” (# 143.00, page 1.) The court will label Cadles of Grassy Meadows II, LLC as the Movant in this Memorandum of Decision.

There are five grounds for a motion to dismiss:  (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process.  Practice Book § 10–31.   Neither the defendant's Motion to Dismiss nor his Memorandum in support thereof relate the five grounds stated in Practice Book § 10–31 to the multitude of arguments raised in this one sentence Motion to Dismiss.   A motion to dismiss tests whether the court is without jurisdiction.  Bailey v. Medical Examining Board/or State Employee Disability Retirement, 75 Conn.App. 215, 219 (2003).   The defendant's Motion to Dismiss does not clearly claim that this court acted without jurisdiction nor whether the court lacked in personam jurisdiction or subject matter jurisdiction, or both.  Pellecchia v. Killingly, 53 Conn.Sup. 220, 228 (2012).

A general review of the court proceedings is necessary before the court determines the nature and extent of the relief being requested by this Motion to Dismiss.

This lawsuit was returnable to court on March 27, 1990.   The initial plaintiff was the Bank of Stamford.   The original complaint was in two counts:  suit on a November 1, 1988 $250,000 promissory note against the defendant, William Weinstein, and on a guarantee executed by the defendant, Richard Schlesinger.   These two defendants appeared by the same counsel, Epstein and Fogarty, on October 28, 1991.   The plaintiff, the Bank of Stamford, was represented by counsel.   The lawsuit was assigned on various dormancy lists and received exemptions from dormancy for cause.   On December 9, 1994 a judgment of dismissal entered in accordance with the court's docket management program (# 121.71).   The lawsuit was reinstated by court order on January 17, 1995 (# 122.00) and placed on the trial docket.

Prior to 1992 the Bank of Stamford became the Fairfield County Trust Company.   On April 6, 1992 the Fairfield County Trust Company was substituted as the party plaintiff (# 109.00).   Shortly thereafter the Fairfield County Trust Company became a failed bank and was taken over by the Federal Deposit Insurance Corporation (FDIC).   The FDIC was substituted as the party plaintiff on September 13, 1993 (# 113.00).   The Pellegrino Law Firm, P.C. filed an appearance for the plaintiff on December 21, 1993.   The FDIC was the plaintiff on October 18, 1995.   On October 18, 1995 the FDIC was represented by The Pellegrino Law Firm, P.C. and Richard Schlesinger and William Weinstein were represented by the law firm of Epstein, Fogarty, Cohen and Selby, the law firm having changed its name in the interim.

This case was assigned to commence trial on October 18, 1995.   All parties appeared before the court, Richard Tobin, J., on October 18, 1995 at the Norwalk Superior Court.   Attorney Bernard Pellegrino of The Pellegrino Law Firm, P.C. and Carolyn W. Alexander aka Carolyn Alexander–Collins of Epstein, Fogarty, Cohen and Selby were present and addressed the court.   The four-page transcript of the October 18, 1995 proceedings is in the file. (# 133.00, Exhibit C.) This four-page transcript was also offered at the oral argument hearing before this court on November 26, 2013 as Exhibit 1. The court, Tobin, J., addressed both counsel:  “And I understand there is a stipulation that one of you wants to read into the record.”   Attorney Pellegrino then stated:  “Yes, Your Honor.   What we'd like to do is read into the record and then file a written stipulation so we have something in writing.   But in effect, the agreement is that judgment shall enter in favor of the plaintiff against both defendants in the sum of $292,014.22, so 292,014.22.   This is a collection on a note.”   The court then asked questions about interest, principle and when it was to be paid.   Counsel then answered, “We'd file a written stipulation, so that would be on ․ in the record.”   The Court responded:  “Is that your understanding?”   Attorney Alexander–Collins replied:  “That's the agreement.   Yes, Your Honor.”   The court then immediately concluded the proceedings by stating:

“Okay. Does anyone have anything further on that?   Thank you very much.   Have a pleasant day.”   On October 18, 1995 the clerk of the Superior Court completed a pre-printed court form.   To that form the clerk added in handwriting the docket number, the first named plaintiff and first named defendant on the left side of the heading of the case and the date “10/18/95” on the right side of the heading of the case.   The form pre-printed “SUPERIOR COURT JUDICIAL DISTRICT OF STAMFORD/NORWALK AT STAMFORD.”   The pre-printed form is entitled “JUDGMENT” with the word “JUDGMENT” pre-printed in the center of the pleading just below the heading.   The pre-printed body of the JUDGMENT states:  “Judgment may enter in accordance with the attached stipulation.”   The word “attached” was crossed out in ink but can otherwise be read.   Added in handwritten ink after the word “stipulation,” was the following:  ENTERED ON THE RECORD THIS DATE, 10/18/95.”   In the signature space below the printed “BY THE COURT” in parenthesis with the “J.” set forth in the parenthesis with space for the name of the judge to its left, is the word, “TOBIN” in handwritten ink.   Under the judge's name is pre-printed:  “ASSISTANT CLERK.”   Below that is the handwritten ink signature, “Tara C. Fetty.”   This one-page JUDGMENT pleading was not coded in with a computer number nor was it date stamped.

Stapled to this one-page JUDGMENT pleading is another court form, a half-page form entitled:  “CASE DISPOSITION RECORD,” form JD–CL–37 New 5–87.   This form is preprinted and contains thirteen numbered different pre-printed dispositions labeled TYPE OF DISPOSITION.   Number 9 states in pre-printed format:  “Judgment by stipulation before a trial court or jury, is commenced JDGSTP.”   Those words in paragraph 9 were circled with an arrow pointing to handwritten ink that states:  “Pls send JDNO.” That half-page form contains space at the top with the following preprinted boxes:  Name of Case, Judicial District, Docket No., Disposition Date and Name of Trial/Disposition Judge.   In those respective boxes in handwritten ink appears:  “Bank of Stamford v. Schlesinger, Richard,” “FST,” “CV 90–0107264,” “10/18/95”, and “TOBIN, J.” This half-page form JD–CL–37 New 5–87 was stapled to the one-page JUDGMENT form and labeled “128.55,” the computer code for that pleading.   The Edison program, the court's current e-filing program, refers to computer code pleading # 128.55 as “JUDGMENT BY STIPULATION BEFORE TRIAL COMMENCED.”

It is noted that neither of the above two documents that constitute pleading # 128.55 names the FDIC as a party plaintiff nor William Weinstein as party defendant, the name of the party in whose favor the judgment entered, the amount of the judgment, and the fact that it was a note collection lawsuit.   Pleading # 128.55 has been placed in the paper court file as the first pleading stapled to the JUDGMENT pleading in order followed by pleading number # 101.00, the summons, complaint and PJR application.

There is no pleading immediately before # 128.55 in the court's paper file.   Pleading # 127.00 is plaintiff's Motion for Order of Compliance dated October 11, 1995 requesting a default for the defendants' failure to respond to plaintiff's Interrogatories and Request for Production dated August 18, 1995.   The order portion of # 127.00 is not signed, completed or dated. # 127.00 was not acted on by the court.   The pleading number immediately after # 128.55 in the court's paper file is a June 20, 2008 Assignment of Judgment from FDIC to JDC Finance Company III, LP, coded in as pleading # 129.10. It is one of the four documents mentioned in the Motion to Dismiss at issue.   It was coded in Edison as # 129.10 as a plaintiff's pleading “NOTICE OF SERVICE.”   There is no court order on # 129.10.

After 1995 the Superior Court converted to e-filing.   The court's current e-filing program is called Edison.   Edison has a pre-printed line on the front page of its docket sheet entitled “Init Disp Coded.”   The typed date on that line states:  “10/19/1995.”   The next pre-printed line in Edison is entitled:  “Disposition Date” and following that on the same line is typed:  “10/18/1995.”   The Edison docket printout has coded in pleading # 128.55 as a “JUDGMENT BY STIPULATION BEFORE TRIAL COMMENCED.”   The public's version of the court's computer docket sheet on the first page notes:  “Disposition Date:  10/18/1995 Disposition:  JUDGMENT BY STIPULATION.   Judge or Magistrate:  Hon. RICHARD TOBIN, J.” (# 133.00, Exhibit A, first page.)

It is apparent from the four-page transcript that no written or signed Stipulation was in court on October 18, 1995. (# 133.00, Exhibit C.) A copy of a two-page “Stipulation of Judgment” dated October 18, 1995 is in the court's paper file. (# 133.00, Exhibit D.) This Stipulation of Judgment is not coded in as separate pleading in either the court's paper file or the Edison computer file.   There is no signature above the line:  “Carolyn W. Alexander, Epstein, Fogarty, Cohen & Selby.”   Bernard Pellegrino's signature appears about the plaintiff's signature line.   The only copy of the Stipulation of Judgment is attached to the Motion for Order Nunc Pro Tunc. (# 133.00, Exhibit B.) No evidence was offered as to when the Stipulation of Judgment was prepared, signed by Attorney Bernard Pellegrino or submitted to Attorney Carolyn W. Alexander for her review and signature.

The Stipulation of Judgment states that the lawsuit was scheduled to be tried on October 18, 1995.   It names the parties and generally describes the pleadings.   Paragraph 4 of the Stipulation states:  “At that time and place, the parties stipulated on the record that judgment may enter in favor of the Plaintiff, Federal Deposit Insurance Corporation as Receiver for Fairfield County Trust Company against the Defendants, Richard Schlesinger and William Weinstein, jointly and severally, in the amount of $292,014.22.”   Paragraph 5 of the Stipulation of Judgment states:  “The date of judgment shall be October 18, 1995.”   Paragraph 5 is the last paragraph of the October 18, 1995 Stipulation.

On the following day, October 19, 1995, the clerk of the Superior Court issued a computer notice.   A copy of this computer notice is not chronologically filed in the court's paper file.   It is not in the Edison e-filing program.   That clerk's notice states:  “128–55 JUDGMENT BY STIPULATION BEFORE A TRIAL, COURT OR JURY, IS COMMENCED.   TOBIN, J. 10/18/95.”   This notice is customarily sent to all counsel of record.   This type of clerk's notice is commonly referred to as a JDNO. That clerk's notice is only filed as Exhibit B attached to the Motion for Order Nunc Pro Tunc # 133.00.

On February 15, 2011 the law firm of Ury & Moscow, LLC filed an appearance for the Movant.   The appearance checked off the “Other” box and described their client as “Plaintiff;  Cadles of Grassy Meadows II, LLC successor in Interest to FDIC Receiver for Bank of Stamford.”   On February 15, 2011 Attorney Anthony J. LaBella of the law firm of Ury & Moscow, LLC filed a Motion for Order Nunc Pro Tunc (# 133.00).   He did so on behalf of a client he described as “THE MOVANT.”   The last sentence of the Motion states:  “Cadles of Grassy Meadows II, L.L.C., respectfully moves that the court order that Judgment enter against all Defendants, nunc pro tunc, in conformance with the Stipulation and Transcripts, submitted herewith, as of October 18, 1995.”   This was the first time the transcript and the stipulation were filed with the court.   Neither had been placed in the file by counsel, attached to a motion, filed as a separate pleading, or filed by the court, prior to February 15, 2011.   The court assumes that Attorney LaBella and the law firm, Ury & Moscow, LLC, represent Cadles of Grassy Meadows II, LLC.

The Motion for Order Nunc Pro Tunc was granted by Judge Mottolese on March 7, 2011, (# 133.86).   The order read:  “As the court is authorized to correct the terms of a judgment at any time to reflect the true facts, the judgment by stipulation heretofore entered by the court on October 18, 1995 is hereby corrected to state the amount of judgment to be $292,014.22.   Judge:  A. WILLIAM MOTTOLESE.” (# 133.86) No appeal was taken from that March 7, 2011 order.   The Motion for Order Nunc Pro Tunc was not served by a marshal, indifferent person or other authorized officer on Richard Schlesinger.   No such return of service as to Richard Schlesinger is in the file.   No Order to Show Cause was issued on the Motion for Order Nunc Pro Tunc and none is in the file.   The Certification of Service on the Motion for Order Nunc Pro Tunc states:  “This is to certify that a copy of the foregoing has been mailed, postage prepaid, this 15th day of February 2011 to the following:  Carolyn Alexander, Esq., Epstein, Fogarty, Cohen & Selby, 88 Field Point Road, Greenwich, CT 06830.”   Copies were also certified to the FDIC and the Pellegrino Law Firm at New Haven and Guilford, Connecticut addresses.

The Stipulation of Judgment was not placed in the court file on or about October 18, 1995.   It was not placed in the court file by any party filing the Stipulation of Judgment as a separate pleading.   The Stipulation of Judgment has not been separately coded in the court file as a pleading.   The four-page transcript dated October 18, 1995 was not placed in the court file by any party filing the four-page transcript as a separate pleading.   The four-page transcript has not been separately coded in the court file as a pleading.   The Stipulation of Judgment dated October 18, 1995 and the four-page October 18, 1995 transcript only appear in the court's paper file as Exhibits C and D to the Movant's February 15, 2011 Motion for Order Nunc Pro Tunc # 133.00. The four-page transcript was also offered in evidence at the November 26, 2013 hearing on this Motion to Dismiss as Exhibit 1. Neither Exhibit C or Exhibit D have been coded in as separate pleadings in the court's Edison computer file.

At oral argument before this court on the Motion to Dismiss, both counsel agreed that Carolyn Alexander–Collins aka Carolyn Alexander has not been associated with that law firm since before 2011.   Upon information and belief the law firm is now known as Fogarty, Cohen, Selby and Nemiroff, LLC. It has offices at the same address at 88 Field Point Road, Greenwich, CT 06830.

There is no record of any pleadings or appearance filed by the law firm Fogarty, Cohen, Selby and Nemiroff or its predecessor on or after October 18, 1995.

Four documents were placed in the file and coded in by the Superior Court clerk in 2008:  # 129.10, Assignment of Judgment, FDIC to JDC Finance Company III, L.P. dated June 20, 2008:  # 130.10, Assignment of Stipulation of Judgment, JDC Finance Company III, L.P. to Value Recovery Group, Inc. dated July 7, 2008:  # 131.10, Amended Assignment of Stipulation of Judgment, Value Recovery Group, Inc. to The Cadle Company dated July 9, 2008:  and # 132.10, Assignment of Stipulation of Judgment, The Cadle Company to Cadles of Grassy Meadows II, L.L.C. dated July 9, 2008.   The Motion to Dismiss (# 143.00) seeks to “vacate all actions taken by it, including alleged stipulations improperly filed in this action (entries # 130.10–132.10, filed on July 14, 2008).”   The Superior Court Clerk has coded in # 129.10 as a “Notice” July 14, 2008 and # 130.10, # 131.10 and # 132.10 as “Stipulation” on July 14, 2008. (# 133.00, Exhibit A.) The court assumes that the defendant, Richard Schlesinger, wishes the court to address pleading # 129.10 in addition to the other three pleadings, # 130.10, # 131.10 and # 132.10. Counsel agreed that these four documents were filed by the Movant, Cadles of Grassy Meadows II, LLC.

Cadles of Grassy Meadows II, LLC has not been joined in as a party in this lawsuit by any means that required clerk or court action.   The clerk has coded in the appearance of Ury & Moscow, LLC as representing an other entity, not a party of record.   The clerk has coded in that entity in a box labeled “0–02” meaning “Other, the second Other in the file.”   The clerk dated Ury & Moscow, LLC appearance as February 25, 2011 and labeled the law firm's client as:  “Cadles of Grassy Meadows II, LLC Successor in Interest to FDIC Receiver for Bank of Stamford.”   These entries by the clerk in coding in the Ury & Moscow, LLC appearance do not join Cadles of Grassy Meadows II, LLC as a party.

Attorney LaBella is claiming that his client has the right to enforce the October 18, 1995 judgment since his client has received valid assignments of that judgment.   He filed these assignments of judgment in this lawsuit as the above four pleadings. (# 129.10, # 130.10, # 131.10 and # 132.10).   Cadles of Grassy Meadows II, LLC has not received any permission to file pleadings, or documents in this lawsuit by any court order or written consent of any other party.

The court heard oral argument on two separate dates.   Numerous Memoranda of Law were submitted by both parties. # 144.00, # 148.00, # 149.00, # 150.00, and # 151.00. From these documents and oral arguments the defendant, Richard Schlesinger, makes numerous claims, too numerous for numbering.   These claims include the following:  The Motion for Order Nunc Pro Tunc is a type of postjudgment proceeding that requires service under Gen.Stat. § 52–350e.   Gen.Stat. § 52–350e is a postjudgment procedural statute and its terms have not been complied with by the movant's Motion for Order Nunc Pro Tunc. Service by mail on the defendant's former counsel fails both to comply with Gen.Stat. § 52–350e and procedural due process.   The movant is a nonparty to the proceedings.   The movant had no right to appear in this lawsuit.   The movant had no right to file the Motion for Order Nunc Pro Tunc. No judgment entered on October 18, 1995.   No judgment entered at any time after October 18, 1995.   No stipulation was prepared and fully executed as required by the October 18, 1995 court proceedings.   The language of the four-page transcript of October 18, 1995 is at variance with the language of the Stipulation of Judgment.   Judge Richard Tobin performed an inadequate canvass on October 18, 1995.   There is no mention of the dollar amount in any documents in the court file.   Certain events occurred after October 18, 1995 such that there was no meeting of the minds by all parties.   There is no signature by either defendant on the Stipulation of Judgment.   Defendants' counsel did not sign the Stipulation of Judgment.   There was no place on the Stipulation of Judgment for the plaintiff or the two defendants to sign.   The Stipulation of Judgment required the signature of the parties.   The October 18, 1995 court proceeding was conditioned on a fully signed Stipulation and such a fully signed Stipulation was never prepared or submitted to the court.   The October 18, 1995 conditions to the settlement of the lawsuit never occurred and thus there was no settlement and no judgment entered on October 18, 1995.   The movant has no standing to proceed in this lawsuit in any capacity whatsoever.   Based on a court decision in the State of New York in which all parties participated, the movant cannot proceed.   Collateral estoppel should be invoked based on the New York court decision.   Service on the defendant's former counsel of the Motion for Order Nunc Pro Tunc made more than 180 days after October 18, 1995 is invalid as per P.B. § 3–9.   There were other material terms of the parties agreement that did not appear in either the four-page transcript or the Stipulation of Judgment.

The Movant counters by claiming that the Motion for Order Nunc Pro Tunc cannot be considered a post-judgment procedure.  “Instead, it was a request to cure an oversight, a ministerial housekeeping action to correct an omission of the record which neither seeks anything from Defendant nor alleges the Judgment in any manner.” # 144.00, pages 2–3.

The court has examined this court's paper file and the court's Edison computer file to determine what pleadings and documents were in this court file as of October 19, 1995.   In addition the court has examined the entire court's paper file and the Edison computer file.   This court will examine the status of this court's paper file as it appeared to Judge Richard Tobin, who presided over the October 18, 1995 hearing and the records prepared at that October 18, 1995 hearing by his clerk.   Since that document was prepared after October 18, 1995, this examination will not include consideration of the Stipulation of Judgment. (# 133.00, Exhibit C.) “As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments ․ The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment ․ The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making ․ Effect must be given to that which is clearly implied as well as to that which is expressed ․ The [order or] judgment should admit of a consistent construction as a whole.   (Internal quotation marks omitted.)”  Perry v. Perry, 130 Conn.App. 720, 724 (2011).

Judge Richard Tobin was presented with an oral stipulation.   The case had been assigned to Judge Tobin to preside over a court trial and that court trial was to commence before him on October 18, 1995.   The plaintiff was represented by counsel of record.   The two defendants were represented by the same counsel of record.   The court had jurisdiction over the subject matter and all of the parties.   Both counsel appeared and addressed the court on the court monitored record on October 18, 1995.   There is no claim that either attorney was not authorized to represent their respective clients at the October 18, 1995 court appearance or that the attorneys' authority was somehow limited.

A stipulated judgment is a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction.  Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990);  Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956).   While a stipulated or consent judgment is not a judicial determination of any litigated right;  Gillis v. Gillis, supra [339];  Bryan v. Reynolds, supra [460];  [it] is a judicial function and an exercise of the judicial power to render judgment on consent.   A judgment upon consent is a judicial act.  Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 89 L.Ed.3d (1944).   There is no doubt that the parties may enter into any agreement they choose.   By seeking to transform their private agreement into a judgment of court, however, the parties invoke the judicial power of the court.   Such a judicial act, like all judicial acts, necessarily involves the court's exercise of its powers of law and equity.   The parties cannot, by giving each other consideration, compel a court to render a judgment in accordance with a stipulation that the court, in the exercise of its discretion, is unwilling to accept.  System Federation No. 91, Railway Employees' Department, AFL–CIO v. Wright, 364 U.S. 642, 651, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961).[A] judge is not a mere umpire in a forensic encounter but a minister of justice, and it follows that an agreement is not necessarily binding on the court and may justifiably be disregarded in a particular case.”  (Internal quotation marks omitted.)  Bank of Boston Connecticut v. DeGroff, 31 Conn.App. 253, 257, 624 A.2d 904 (1993) (Freedman, J.) concurring in part and dissenting in part).  “Ordinarily ․ stipulations of the parties should be adopted by the court.  Central Coat, Apron & Linen Service, Inc. v. Indemnity Ins. Co., 136 Conn. 234, 236, 70 A.2d 126 (1949).   If, for some reason, [however] the court cannot adopt the stipulation of the parties, it should state its disapproval of the stipulation and the reasons for its disapproval on the record.   The court should not proceed to judgment, including an order for payments, without offering the parties an opportunity to present evidence relevant to that judgment.   See Bartley v. Bartley, 27 Conn.App. 195, 197–98, 604 A.2d 1343 (1992).”  Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn.App. 435, 438, 606 A.2d 729 (1992).

Midland Funding v. Tripp, 134 Conn.App. 195, 199–200 (2012).

The proceeding before Judge Tobin on October 18, 1995 was an oral stipulation presented by counsel of record.   It must be examined in accordance with contract interpretation rules.

[a] judgment rendered in accordance with ․ a stipulation of the parties is to be regarded and construed as a contract ․ Accordingly, [o]ur resolution of the [plaintiff's] claim is guided by the general principles governing the construction of contracts.   A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.”  (Internal quotation marks omitted.)  Guaragno v. Guaragno, 141 Conn.App. 337, 344, 61 A.3d 1119 (2013).

[T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms ․ [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ․

[I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation ․ militates against interpreting a contract in a way that renders a provision superfluous ․ If a contract is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review ․ When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous.”  (Internal quotation marks omitted.)  Prymas v. New Britain, 122 Conn.App. 511, 517–18, 3 A.3d 86, cert. denied, 298 Conn. 915, 4 A.3d 833 (2010).  “To identify and to apply the appropriate standard of review, we must, therefore, initially determine whether the agreement ․ was unambiguous.”  Bijar v. Bijar, 79 Conn.App. 752, 760, 831 A.2d 824 (2003).

McKeon v. Lennon, 147 Conn.App. 366, 373 (2013).

“[A] court cannot import into [an] agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms.”  Levine v. Massey, 232 Conn. 272, 278 (1995).  “Courts do not rewrite contracts for parties.”  Nassra v. Nassra, 139 Conn.App. 661, 669 (2012).

Both counsel commenced the October 18, 1995 court hearing by introducing themselves and their respective clients by name:  The plaintiff, FDIC, and the defendants, Richard Schlesinger and William Weinstein.   The name of the case and its docket number were placed on the record.   The court had previously been informed that an agreement had been reached by stating:  “And I understand there is a stipulation that one of you wants to read into the record?”   The plaintiff then proceeded to state:  “But in effect, the agreement is that judgment shall enter in favor of the plaintiff against both defendants in the amount of $292,014.22, so 292,014.22.   This is a collection on a note.”   There was only one plaintiff and only two defendants in this lawsuit.   The court then asked a number of clarifying questions as to interest, principle and the date of payment.   Counsel then stated that the $292,014.22 includes both interest and principle.   No breakdown of how much of the $292,014.22 was principle, how much was interest, what rate or rates of interest were used, and the date interest commenced was furnished to the court.   There was no agreement from whom or in what amounts any payments would be made.   The oral stipulation presented to Judge Tobin in open court stated that a judgment in the amount of $292,014.22 would enter.   Upon obtaining the answer to the questions of interest, principle and date of payment, the court asked the defendants' counsel:  “Is that your understanding?”   To that court's question defendants' counsel stated:  “That's the agreement.   Yes. Your Honor.”   When asked by the court if there was anything further and hearing no response by either counsel, the court stated:  “Thank you very much.   Have a pleasant day.”   The clerk for Judge Tobin then prepared the documents referenced earlier in this Memorandum of Decision placing the file in judgment status based on the October 18, 1995 stipulation.

The defendant, Richard Schlesinger, now argues that the October 18, 1995 court stipulation was conditioned upon a written stipulation being prepared and signed.   The defendant claims that a fully executed stipulation was never submitted to the court and neither defendant nor their counsel of record never signed such a stipulation. # 133.00, Exhibit D. The defendant points to Attorney Pellegrino's statement in court on October 18, 1995 in response to the court's question to read the stipulation into the record, “Yes. Your Honor.   What we'd like to do is read into the record and then file a written stipulation so we have something in writing.” # 133.00, Exhibit C, page 2, lines 25–27.   The defendant notes that neither the court clerk's JUDGMENT:  the half-page form JD–CL–37 New 5–87 (# 128.55) dated October 18, 1995, the one-page JUDGMENT form dated October 18, 1995 nor the one-page JDNO notice dated October 19, 1995 (# 133.00, Exhibit B) contain the name of the party as to whose favor judgment would enter, the name of the parties against whom the judgment would enter, the amount of the judgment, the interest terms, if any, and the payment terms, if any.

The court has examined carefully the language of the stipulation read into the court record on October 18, 1995 with the five paragraphs of the Stipulation of Judgment dated October 18, 1995. # 133.00, Exhibit C, Exhibit D. The court can find only the following differences:  the plaintiff, FDIC, is labeled as the successor to both Fairfield County Trust Company and the Bank of Stamford, the two defendants were respectfully the maker and the guarantor of the note, the defendants filed an answer and special defenses to the plaintiff's claims, and the case was scheduled to be tried on October 18, 1995.   All of these allegations are contained in paragraphs 1, 2 and 3 of Stipulation of Judgment and are not contained in the words used by counsel in court on October 18, 1995.   These words are merely procedural allegations and do not conflict with the simple language of the stipulation stated orally in open court on October 18, 1995.

Paragraph 5 of the Stipulation of Judgment states:  “The date of judgment shall be October 18, 1995.”   This is fully consistent with the language used in open court on October 18, 1995 and does not render the court language ambiguous.

Paragraph 4 of the Stipulation of Judgment states more detailed facts and states exactly what occurred in court on October 18, 1995.   The intention of paragraph 4 is to state what occurred in court on October 18, 1995 by using the following language:  “At that time and place, the parties stipulated on the record ․” This introductory language of paragraph 4 is not ambiguous and states that what follows in paragraph 4 is what occurred in court on October 18, 1995, no more, no less.   The entire paragraph 4 states:  “At that time and place, the parties stipulated on the record that judgment may enter in favor of the Plaintiff, Federal Deposit Insurance Corporation as Receiver for Fairfield County Trust Company against the Defendants, Richard Schlesinger and William Weinstein, jointly and severally in the amount of $292,014.22.”   This is exactly what occurred in court.   The judgment that entered in court on October 18, 1995 was against both defendants.   No allocation of the judgment as between the two defendants was made in the October 18, 1995 transcript.   The judgment as per the four-page transcript against both defendants is identical to the Stipulation of Judgment, “jointly and severally.”  Terracino v. Gordon & Hiller, 121 Conn.App. 795, 824 (2010).

The court has examined the four-page court transcript and the Stipulation of Judgment and notes no difference in the terms or amount.   This court cannot find any ambiguity in the language used by the court or either counsel on October 18, 1995.  Connecticut National Bank v. Gager, 263 Conn. 321, 326 (2003).   All of the terms and conditions found in a typical collection case judgment are found in the four-page transcript. # 133.00, Exhibit C.

The mention by the plaintiff's attorney at the October 18, 1995 court hearing of a written stipulation did not render the judgment conditional.  Reiley v. Healey, 122 Conn. 64, 77 (1936);  Town of Waterford v. Cone, 151 Conn. 702, 702 (1963).   The October 18, 1995 court proceedings resolved all of the issues between the parties.   No further action was needed.  Loiselle v. Browning & Browning Real Estate, LLC, 147 Conn.App. 246, 251, n.4 (2013);  Bridgeport Pipe Engineering Co. v. DeMatteo Construction, Co., 159 Conn. 242, 246 (1970).   The judgment was final in all of its terms.   Nothing in the written Stipulation of Judgment conflicts with the finality of the terms as expressed by both counsel in open court.  Bassett, Bank Commissioner v. City Bank and Trust Company, 5 Conn.Sup. 450, 456–57 (1938).   The October 18, 1995 trial was not continued to a date certain so that a written stipulation could be filed.   Neither party indicated a date when the stipulation would be filed.   The court's clerk entered judgment on October 18, 1995 notifying all counsel on October 19, 1995 of the judgment.   Neither party objected to that clerk's notification nor filed any pleadings in the years thereafter.

The defendant seems to be claiming that a full and complete canvass by the trial judge of all of the terms of the stipulation should have occurred on October 18, 1995.   No authority for this proposition has been submitted.   Connecticut law does not impose a bright line rule requiring canvasses of parties regarding settlement agreements at the time they are entered into.   McCook v. Whitebirch Construction, LLC, 117 Conn.App. 320, 333, cert. denied, 294 Conn. 932 (2010).

The defendant claims that the parties failed to have a mutual meeting of the minds as to the terms of the Stipulation.   The defendants' July 3, 2013 Memorandum of Law states:  “There were substantial settlement talks between the Defendant and the Plaintiff FDIC, which were reported to the Court in October of 1995, with the express representation that there would be a written stipulation to follow.   Talks broke down as the parties could not agree on various terms, and there never was a written stipulation.” # 144.00, pages 1–2.   The issues before the court were raised by a Motion to Dismiss.   Both parties had the right to offer evidence outside the court file.  Standard Tallow Company v. Jowdy, 190 Conn. 48, 51 (1983).   The defendants did not offer evidence of the parties failure to agree to all of the terms.   The four-page transcript fails to demonstrate any disagreement as to the terms of the underlying stipulation.   The transcript does not contain a request to continue the scheduled court trial to another date.   This court cannot find any “express representation” as to the disputed facts in the above referenced court pleadings or in the four-page transcript other than that the parties wished to prepare and sign a later Stipulation.   The court therefore rejects the defendant's claim that there were additional terms that were not agreed to by all the parties.

The statements of both counsel in open court on the first day of trial are judicial admissions binding on their clients.  “A judicial admission is, in theory, a substitute for evidence, in that it does do away with the need for evidence.”  State v. Nguyen, 52 Conn.App. 85, 90 (1999).  “Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings.”  Jones v. Forst, 41 Conn.App. 341, 346 (1996).  “Acts of an attorney are imputed to a client when they are performed in the furtherance of the business for which the attorney has been retained.”  Allen v. Nissley, 184 Conn. 539, 542–43 (1981).  “A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.”   Industrial Metal and Tool, Inc. v. Zaleski, 146 Conn.App. 609, 614 (2013).

Because [t]he construction of a judgment is a question of law for the court ․ our review of the ․ claim is plenary.   As a general rule, judgments are to be construed in the same fashion as other written instruments ․ The determinative factor is the intention of the court as gathered from all parts of the judgment ․ The interpretation of a judgment may involve the circumstances surrounding the making of the judgment ․ Effect must be given to that which is clearly implied as well as to that which is expressed ․ The judgment should admit of a consistent construction as a whole.”  (Citation omitted;  internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 91–92, 952 A.2d 1 (2008).

Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 737–38 (2014).   The court has the power to enter any and all orders necessary to put into force and effect a judgment of the court.  Roberts v. Roberts, 32 Conn.App. 465, 471 (1993).

Nevertheless, as our Supreme Court explained in Avalon Bay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 241, 796 A.2d 1164 (2002):  “We reject [a] hypertechnical understanding of the trial court's continuing jurisdiction to effectuate prior judgments.   We conclude, instead, that the trial court's continuing jurisdiction is not separate from, but, rather, derives from, its equitable authority to vindicate judgments.   Moreover, we hold that such equitable authority ․ [derives] from its inherent powers.   See Connecticut Pharmaceutical Ass'n, Inc. v. Milano, 191 Conn. [555, 563, 468 A.2d 1230 (1983) ] (recognizing ‘trial court's power to fashion a remedy appropriate to the vindication of a prior consent judgment’);  Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982) (recognizing ‘the inherent power of the court to coerce compliance with its orders').”  (Emphasis in original;  footnote omitted.)   See also Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn, 168, 213, 884 A.2d 981 (2005) (explaining and applying reasoning of Avalon Bay Communities, Inc.).   In the present case, where the judgment of the court contained the specific notice requirements to which the plaintiff was ordered to adhere, the court necessarily retained the jurisdiction and authority to effectuate its judgment when the plaintiff failed to adhere to the terms of the judgment rendered in its favor and then falsely certified to the court that it had complied.

Wells Fargo Bank, N.A. v. Melahn, 148 Conn.App. 1, 28 (2014).

From this court's review of the file as of the events that occurred up to October 19, 1995, this court is of the opinion that this matter went to judgment on October 18, 1995 in favor of the plaintiff as against the two defendants in the amount of $292,014.22.   This court further finds that this was not a default judgment.   This judgment entered on the first day of trial was based on a stipulation by all parties who were represented by counsel.   The statute of limitations on civil judgments in Connecticut is 20 years to issue an execution, Gen.Stat. § 52–526(c), and 25 years to sue on the judgment, Gen.Stat. § 52–598(a).   Neither statute has run.  “For the purposes of postjudgment procedures, the Superior Court shall have jurisdiction over all parties of record in an action until satisfaction of the judgment or, if sooner, until the statute limiting execution has run, except the Superior Court shall have jurisdiction at any time to determine exemption rights and grant appropriate relief.”  Gen.Stat. § 52–350d(a).   Having determined that judgment entered on October 18, 1995, this court finds that the issues raised concerning the Motion for Order Nunc Pro Tunc and the four Assignments of Judgment are moot.   Having made that finding, this court must deny the defendants July 3, 2013 Motion to Dismiss (# 143.00).   In the interest of completeness, the court will address all of the matters raised in the Motion to Dismiss.

The claimed judgment before this court was based on a stipulation.   The parties disagree as to the extent of the Stipulation but are in agreement as to what was stated in court on October 28, 1995.   Although not clearly stated in the defendant's Motion to Dismiss, his ultimate goal is to prevent the court from declaring that this lawsuit is in judgment status.   The overarching effort of the defendant in filing the Motion to Dismiss was to effectively open the October 18, 1995 Stipulation by having a court find that no judgment actually entered on October 18, 1995.   The plaintiff argues that the plaintiff, its counsel of record, the trial judge and the clerk, all intended that the October 18, 1995 court proceeding placed the lawsuit into judgment status.   The court finds, that despite the labeling of the proceedings before this court as a Motion to Dismiss, the defendant intends to open a stipulated judgment.   Cuozzo v. Orange, 147 Conn.App. 148, 156 (2013);  Mahoney v. Lensink, 213 Conn. 548, 567–68 (1990).

A motion to open a stipulated judgment, when grounded on mistake or duress, necessarily requires the court to make a factual determination before it can exercise its discretion to grant or deny the motion ․ In making its factual determination whether a stipulated judgment should be opened, the court must inquire into whether the decree itself was obtained by fraud, duress, accident or mistake ․ A stipulated judgment ․ is not voidable on the ground that it was accepted with reluctance, so long as its procurement was not the result of fraud, duress, or mistake.”  (Citations omitted;  internal quotation marks omitted.)  Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995).

Cornfield Associates, Limited, Partnership v. Cummings, 148 Conn.App. 70, 76 (2014).

The defendant offered no evidence, testimony or facts before this court to demonstrate that the parties only intended to enter an agreement upon the court record on October 18, 1995 that was conditioned upon a fully executed Stipulation to be later filed with the Superior Court that contained terms and conditions different than stated on the court record as demonstrated by the four-page transcript.   This court has found that the Stipulation of Judgment and the four-page transcript says the same thing.   The language in the Stipulation of Judgment does not contain terms different than presented to Judge Richard Tobin on October 18, 1995.

“A judgment rendered upon a stipulation of the parties is in the nature of a contract and may be opened by the court if the stipulation was entered into by mutual mistake.”  Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 707, 590 A.2d 968 (1991).   A mutual mistake occurs when “in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction ․ In short, the mistake, being common to both parties, effects a result which neither intended.”  (Citations omitted;  internal quotation marks omitted.)  Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981).   “Whether there has been such mistake is a question of fact.”  Inlands Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., supra, 708.

Cornfield Associates Ltd. Partnership v. Cummings, supra, 148 Conn.App. 78–79.

The mistake must be mutual and must be material to the agreement.  BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 149, cert. denied, 282 Conn. 917 (2007).   A mistake that does not affect the substance or terms of the underlying agreement is not a material mistake.  Id. 149;  Cornfield Associates, Ltd Partnership v. Cummings, supra, 148 Conn.App. 79.

The court breaks down the Motion to Dismiss into four sections, each requesting a different form of relief:  (1) Improper filing of the four entries on July 14, 2008, # 129.10, # 130.10, # 131.10, and # 132.10, supposedly removing them from the file, (2) Vacating any court actions or orders on those four pleadings, # 129.10, # 130.10, # 131.10, and # 132.10, (3) Vacate the March 7, 2011 Order # 133.86 and the February 26, 2011 Motion for Order Nunc Pro Tunc (# 133.00) for improper service, and (4) Dismiss and/or remove the Movant, Cadles of Grassy Meadows II, LLC from this lawsuit for lack of standing.   The court will discuss these four forms of relief.

(1) Improper filing of the four entries on July 14, 2008, # 129.10, # 130.10, # 131.10 and # 132.10. Only a party, properly served or joined in a lawsuit, may file a pleading.  Thalheim v. Town of Greenwich, 256 Conn. 628, 636, 644 (2001).  P.B. §§ 3–2, 4–2, 5–1.   The court finds that the Movant, Cadles of Grassy Meadow II, LLC, is not a party to this litigation.   It has conceded that fact.  “Moreover, because CGM was assigned the judgment after its rendition, it was unnecessary, and in fact improper, for it to be substituted as a party.”  (Memorandum of Law in Support of its Objection to Defendants' Motion to Dismiss dated July 26, 2013, # 148.00, page 5.) It cannot be made a party just because it has hired an attorney who has filed an appearance for it in this litigation.   The plaintiff at the time of judgment on October 18, 1995 was the FDIC. There is no evidence that the FDIC has changed its name to Cadles of Grassy Meadow II, LLC.

The Movant is seeking to enforce the October 18, 1995 judgment.   It has obtained four assignments that it argues is a chain of title from the plaintiff, FDIC, to the Movant, Cadles of Grassy Meadows II, LLC. These four assignments have been placed in this court file and the clerk has coded them in as pleadings # 129.10, # 130.10, # 131.10 and # 132.10. Under Connecticut law a judgment may be assigned without court order or further court proceedings.   “Judgments are assignable and the assignee assumes the right to collect on the judgment.”  Joblin v. LaBow, 33 Conn.App. 365, 367 (1993).   In Joblin a similar procedure was used, the assignment of a claim after judgment entered on that claim.   It was not necessary for the four assignments to be placed in this court file in order that the movant proceed to collect on the judgment that had been assigned to it.  Mall v. LaBow, 33 Conn.App. 359, 362 (1993);  Ciulewicz v. Doyle, 172 Conn. 177, 180 (1976);  First Federal Savings & Loan Associates of Waterbury v. Mangan, 17 Conn.Sup. 42, 43 (1950).

The court finds that no judge acted on these four pleadings;  # 129.10, # 130.10, # 131.10, and # 132.10. A Motion to Dismiss is not the proper method of removing these four documents from this court file.  P.B. § 10–31.   Neither is a Motion to Strike.  P.B. § 10–39(a).   The proper motion probably is a common law motion, possibly a motion to expunge, a motion no longer found in the Practice Book. Harris v. First National Bank & Trust Co., 139 Conn. 749, 753 (1953);  The Craft Refrigerating Machine Company v. The Quinnipiac Brewing Company, 63 Conn. 551, 565–66 (1893).   In any event, the defendant's claim for relief (1) is denied.

(2) Vacating any court actions or orders on those four pleadings:  # 129.10, # 130.10, # 131.10, and # 132.10. No court action on these four pleadings has been demonstrated to this court.   The court could find no such court order as memorialized in the Edison program.   The court could find no court order on any of these four pleadings in the court's paper file.   Since this court has found that the Movant had insufficient authority to file such documents, it is doubtful any court in the future would act on these documents as pleadings.   Future courts are free to act on these documents as Assignments of Judgment forming a chain of title, but that is an issue for other litigation.   Since this court cannot locate any court action or court order on these four documents, the defendant's claim for relief (2) is denied.

(3) Vacate the March 7, 2011 order # 133.86 and the February 26,2011 Motion for Order Nunc Pro Tunc (# 133.00) for improper service.   The Motion for Order Nunc Pro Tunc states:  “Judgment was entered in the amount of $292,014.22 against the Defendants, Richard Schlesinger and William Weinstein (the Judgment), but the Court file is devoid of a specific order entering judgment in a sum certain.” (# 133.00, page 1).   The movant only gave mail notice to defendants' former counsel of this motion.   The mail notice to counsel was furnished more than 15 years after October 18, 1995.   Judge Mottolese decided this motion on the non-arguable short calendar.   Neither defendant appeared and upon information and belief neither defendant had notice of the Motion pending before Judge Mottolese.   Although case law was not cited in Judge Mottolese's March 7, 2011 order, he correctly cited the appropriate law:  “As the court is authorized to correct the terms of a judgment at any time to reflect the true facts, the judgment by stipulation heretofore entered by the court on October 18, 1995 is hereby corrected to state the amount of judgment to be $292,014.22.” (# 133.86.)

“It is axiomatic that part of a trial court's inherent powers is the continuing jurisdiction to clarify ambiguous orders and “to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  (Internal quotation marks omitted.)   Avalon Bay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 243 (2002).   Such continuing jurisdiction is derived from the court's equitable authority to vindicate judgments.  Id. Our Supreme Court has determined that “the trial court's continuing jurisdiction to effectuate its prior judgments, either by summarily ordering compliance with a clear judgment or by interpreting an ambiguous judgment and entering orders to effectuate the judgment, as interpreted, is grounded in its inherent powers, and is not limited to cases wherein the noncompliant party is in contempt, family cases, cases involving injunctions, or cases wherein the parties have agreed to continuing jurisdiction.”  Id. 246.

“We have recognized that it is within the equitable powers of the trial court ‘to fashion whatever orders [are] required to protect the integrity of [its original] judgment.’  Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 670, 594 A.2d 958 (1991), quoting Connecticut Pharmaceutical Ass'n, v. Milano, 191 Conn. 555, 563–64, 468 A.2d 1230 (1983);  see also Niles v. Niles, supra, 246;  Roberts v. Roberts, supra, 32 Conn.App. 470.   The trial court has the power to fashion a remedy appropriate to the vindication of a prior consent judgment.  Connecticut Pharmaceutical Ass'n, Inc. v. Milano, supra, 191 Conn. 563”;  Wells Fargo Bank, N.A. v. Melahn, 148 Conn.App. 1, 8 (2014);  Cornfield Associates Limited Partnership v. Cummings, supra, 148 Conn.App. 75.

Clerical errors in judgments may be corrected at anytime, even beyond the four month period under Gen.Stat. § 52–212a.  Connecticut National Bank v. Gager, supra, 263 Conn. 326;  U.S. Equities Corp. v. Turnier, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 10–6006126 5 (September 4, 2013, Tobin, J.T.R.) [56 Conn. L. Rptr. 782].   “Courts have an inherent power to open, correct and modify judgments.”   Martin v. Martin, 99 Conn.App. 145, 155 (2007).  “The court has inherent jurisdiction to correct at any time any scrivener's or mathematical error made by the court in rendering its Memorandum of Decision without the need for a motion to be filed by any party.   This type of clerical error can be corrected by the court at any time beyond four months.  Milazzo v. Schwartz, 88 Conn.App. 592, 597 (2005);  Blake v. Blake, 211 Conn. 485, 495 (1989);  Federal National Mortgage Association v. Dicioccio, 51 Conn.App. 343, 345 (1998).”   Klein v. Bratt, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV 05–5000502 S (February 18, 2011, Tierney, J.T.R.).  “It is a clerical error if the judgment as recorded fails to agree with the judgment in fact rendered ․” Milazzo v. Schwartz, supra, 88 Conn.App. 596.   This court finds that the case before it involves a clerical error, not a substantive error.

Judge Mottolese had the authority to correct the judgment sua sponte, upon motion by either party properly authorized by statutes, or by the clerk's notification.   The trial judge, Hon. Richard Tobin, was deceased as of February 2011.   Prior to his death Judge Tobin could have signed the October 18, 1995 transcript sua sponte and filed it in the court's file to have corrected this situation.  P.B. § 64–1(a).  “The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk's office.”   The formality upon which the clerical error is brought to the attention of the court is of no consequence.   The trial court is not limited by the postjudgment statute, Gen.Stat. § 52–350e, since any methodology would suffice to bring the clerical error to a judge's attention.

In addition to the inherent authority of the court to correct judgments, the court has the power to enforce agreements entered into in court proceedings.   Audubon Parking Limited Partnership v. Barclay & Stubbs, 225 Conn. 804, 811 (1993).

A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous.  Gatz v. Southwest Bank of Omaha, 836 F.2d 1089, 1095 (8th Cir.1988);  see also J. Fischer, “Enforcement of Settlements:  A Survey, “27 Tort & Ins. L.J. 82, 92 (1991).  “Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit.   A court's authority to enforce a settlement by entry of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings.”  Janus Films, Inc. v. Miller, 801 F.2d 578, 583 (2d Cir.1986);  see also Janneh v. GAF Corporation, 887 F.2d 432, 436–37 (2d Cir.1989), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990);  Meetings & Expositions, Inc. v. Tandy Corporation, 490 F.2d 714, 717 (2d Cir.1974).

Audubon Parking Associates Limited Partnership v. Barclay and Stubbs, 225 Conn. 804, 811–12 (1993).

When parties in court proceedings enter into agreements the court, sua sponte, or upon motion can enforce those agreements and enter judgment consistent with the agreement.   All material terms must have been agreed upon.   There can be no ambiguity in the terms of the agreement.   The parties must be given the opportunity to be heard before the court can enter judgment upon the agreement.  Audubon Parking hearings are common.

This court has applied the standards of Audubon Parking and finds that the October 18, 1995 four-page transcript should be entered as a judgment of the Superior Court.   The court further finds that the Stipulation of Judgment should be entered as a judgment of the Superior Court.   Both judgments will be based on the Audubon Parking standards and these two judgments would be identical.   Both judgments will be dated October 18, 1995.   Those are not default judgments.

The only issue is notice to the defendants' to object.   In fairness the defendants did not have notice of this clerical error before Judge Mottolese's order of March 7, 2011.   The defendant, Richard Schlesinger, has such notice now.   The matter is now before this court.   This court has the inherent power to correct the clerical error by inserting into the pleading # 128.55 three facts:  The judgment entered in favor of (1) the plaintiff, FDIC, as against (2) the two defendants, Richard Schlesinger and William Weinstein, (3) in the amount of $292,014.22 on October 18, 1995.   Therefore, having stated these three facts and supporting that statement with the findings contained in this Memorandum of Decision, this court finds that the attack on Judge Mottolese's March 7, 2011 order is now moot.

The defendant's argument on lack of service appears inconsistent.   On one hand he claims that this lawsuit is not in judgment yet he claims a postjudgment service statute was violated by the Motion for Order Nunc Pro Tunc. The cited statute, Gen.Stat. § 52–350e, reads as follows:

(a) Unless otherwise provided by section 52–351a, 52–351b, 52–356a, 52–356b or 52–361a, service of process concerning a postjudgment procedure, or concerning a determination of interest in property pursuant to section 52–356c, may be made (1) by a proper officer sending a true and attested copy thereof by certified mail, return receipt requested, to a person at his last-known address, or (2) as provided for service of process by chapter 896, or (3) as provided by rule of court for service on an appearing party if made on a party who has filed a postjudgment appearance or if made within one hundred eighty days of rendition of judgment on a party who has appeared in the action.

(b) The provisions of this section do not apply to any process issued pursuant to a contempt proceeding.

The parties agree that the Motion for Order Nunc Pro Tunc does not meet any of the above seven exceptions;  the six cited statutes and a contempt proceeding.   The defendant argues that the service by mail on the defendants' 1995 counsel failed to comply with the statutes.   The plaintiff counters pointing out that the statute is not mandatory since it uses the phrase “may be made.”   The plaintiff also argues that the court's inherent authority to correct judgments does not require service.   Substantial briefing and oral argument addressed Gen.Stat. § 52–350e.

The defendant claims that Gen.Stat. § 52–350c and Gen.Stat. § 52–350a(15) control the type of service of the Motion for Order Nunc Pro Tunc and that service by mail on former counsel is insufficient for two reasons:  The mail service on counsel of record is beyond 180 days as measured by the October 18, 1995 court date and service by mail is not one of the methods of service as authorized by those statutes.

The defendant's claim that the 180–day procedural rule is applicable here assumes that a judgment entered on October 18, 1995, a fact the defendant contests.   The automatic withdrawal of counsel's appearance 180 days after the entry of judgment applies only in family cases, not in civil lawsuits such as a collection on a note.  P.B. § 3–9(c).  No motion to withdraw was ever filed by defendants' counsel of record prior to February 15, 2011.  P.B. § 3–10.   No other appearance was filed in lieu of defendant's counsel.  P.B. §§ 3–9(a), 3–9(b).  No court ordered the withdrawal of the defendants' counsel's appearance prior to February 15, 2011.  P.B. §§ 3–9(d), 3–10.   The 180–day after judgment rule is not applicable to counsel's appearance in civil cases either by Practice Book rule or any case issued by an appellate court.   The defendant's argument as to the 180–day rule must fail.

The defendant argues that none of the statutory stated methods of service in Gen.Stat. §§ 52–350c and 52–350a(15) have been demonstrated.   The court agrees.   The court also, agrees with the defendant's argument that the mere listing of certain postjudgment procedures in Gen.Stat. § 52–350a(15) is not an exhaustive list.  Investment Associates v. Summit Associates, 309 Conn. 840, 871 (2013).  “In our view, proceedings under § 52–598(c) fall squarely within these provisions.   A motion to revive is a procedure commenced after rendition of a money judgment.   The granting of such a motion permits the plaintiff to seek the various forms of relief enumerated in § 52–350a(15).   Therefore, the procedure is one ‘involving,’ rather than seeking, such relief.   Accordingly, the Appellate Court properly concluded that the trial court had personal jurisdiction over the defendant for purposes of adjudicating the motion to revive.”  Id. 871.   This court finds that if the Motion for Order Nunc Pro Tunc was intended to be a postjudgment remedy, proper service pursuant to Gen.Stat. § 52–350e is required.   The court finds that no such service was made on the defendant, Richard Schlesinger.  Shedrick v. Shedrick, 32 Conn.App. 147, 151–52 (1993).

Regardless of the court's above findings, the attack on Judge Mottolese's March 7, 2011 order is moot since this court has already found that a judgment entered on October 18, 1995.   Even if Judge Mottolese's March 7, 2011 is not moot, the court finds that he had the inherent authority without service on the defendant, Richard Schlesinger, to correct the clerical error in the court record.   The language used by Judge Mottolese in his March 7, 2011 order indicates that his decision was based on the court's inherent authority to correct a clerical error in a judgment entered by a judge now deceased.

The parties also argue the legal and procedural effect of two foreign lawsuits between the parties:  one order in Cadles of Grassy Meadows II, LLC v. Schlesinger, et al., No. 10097–2011 (Supreme Court, State of New York, Nassau County, November 15, 2013) and three orders in Cadles of Grassy Meadows II, LLC v. Schlesinger, et al., Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Circuit Division AD, Case No.2012 CA 009479 XXXXMB May 9, 2013, May 9, 2013 and November 13, 2013.   It appears that the Florida and New York decisions conflict, each favoring one party.   The court reviewed the Florida and New York documents in this court file. # 150.00, # 151.00. Both the Florida and New York court decisions involve this very Connecticut judgment that was being enforced in these two foreign states.   Each claim was rejected by these foreign courts based on the failure to comply with the procedural rules of that foreign state.   Neither decision is binding on this court, which is only concerned with Connecticut law.   The plaintiff admits that the Florida court orders in favor of the plaintiff are not binding on this court. (# 151.00, page 2.) It is not for this court to reconcile these two foreign lawsuits, when the initial lawsuit is in Connecticut and went to judgment on October 18, 1995.

This court has already found that a non-default judgment entered in favor of the plaintiff against the two defendants in the amount of $292,014.22 on October 18, 1995 according to knowledge possessed by the trial judge, Hon. Richard Tobin, J., on October 18, 1995.

The defendant's claim for relief (3) is denied.

(4) Dismiss the Movant, Cadles of Grassy Meadow II, LLC from this lawsuit for lack of standing.   The Movant was never a party to this lawsuit.   A Motion to Dismiss addressed to a non-party is not the proper procedural vehicle to raise this issue.  P.B. 10–31.   The court has found that Cadles of Grassy Meadows II, LLC was never properly made a party in this lawsuit.   Even if the Movant, Cadles of Grassy Meadows II, LLC, is not and has never been a proper party to this lawsuit, it may be able to receive title to this judgment by a demonstration of a proper chain of title, and seek enforcement and collection of the judgment.   The court has already found that as of October 18, 1995 the trial court, Hon. Richard Tobin, intended to enter judgment in the amount of $292,014.22.

The defendant's claim for relief (4) is denied.

The defendant, Richard Schlesinger's, July 3, 2013 Motion to Dismiss (# 143.00) is hereby denied in its entirety.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.