Andrea Micek–Holt, Executrix of the Estate of Edward Micek v. Mary Papageorge (2015)

MEMORANDUM OF DECISION (Motion Regarding Stay, # 132, Short Calendar, August 31, 2015)

The plaintiff, who is the appointed fiduciary of the estate of Edward W. Micek, has brought this suit against the defendants, Mary Papageorge, George Papageorge, Angelina Papageorge, and Kalami Corporation,¹ to resolve issues relating to two real estate contracts entered into by her decedent prior to his death.  The first real estate contract was for a one-year lease from August 1, 2010 to September 1, 2011, of property located at 361 Thompson Road, Thompson, Connecticut.  The second real estate contract was a purchase and sale agreement for the aforementioned property, which was to close on or before August 31, 2011.  On November 4, 2014, the plaintiff filed a seven-count complaint alleging:  (1) breach of the purchase and sale agreement;  (2) unjust enrichment;  (3) quiet title;  and (4) foreclosure of equitable interest.  The plaintiff requests declaratory judgment, specific performance, and eviction.  The defendants' lease has expired and they remain on the premises without purchasing the property or paying use and occupancy or other consideration to the estate.

On December 13, 2014, the defendants filed a counterclaim alleging breach of contract, fraud, unjust enrichment, abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress.  On April 17, 2015, the court struck the counterclaim in its entirety based on the defendants' failure to comply with General Statutes § 45a–356.  The defendants have appealed that decision to the Appellate Court.

DISCUSSION

The plaintiff argues that there is no stay in effect in this action because the automatic stay provided for in Practice Book § 61–11 does not apply to pretrial motions and discovery in this action.  The plaintiff argues in the alternative that should the court find that the appeal filed by the defendants stays the Superior Court proceedings, the stay should be terminated in accordance with Practice Book § 61–11(d).  Furthermore, the plaintiff argues that if the court decides not to terminate the stay, it has the ability to condition the stay on the defendants' payment of taxes and insurance.

The defendants object and argue that the stay should remain in effect pending the outcome of the appeal.  The defendants argue that they were irreparably harmed.  The defendants also argue that if the court were to lift the stay, there would be discovery and pretrial matters “which the defendant would handle in different styles depending on the outcome of the appeal.”

“The interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation ․ The interpretation and application of a statute, and thus a Practice Book provision, involves a question of law ․” (Internal quotation marks omitted.)  Cunniffe v. Cunniffe, 150 Conn.App. 419, 429, 91 A.3d 497, cert. denied, 314 Conn. 935, 102 A.3d 1112 (2014), quoting Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010).

Practice Book § 61–11(a) provides in relevant part:  “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired.  If an appeal is filed, such proceedings shall be stayed until the final determination of the cause.”  Practice Book § 61–11(d) provides:  “In all cases not governed by subsection (c), termination of a stay may be sought in accordance with subsection (e) of this rule.  If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken, only for delay or (2) the due administration of justice so requires, the judge may at any time, upon motion or sua sponte, order that the stay be terminated.”

It is within the discretion of the trial court to determine, based on a balancing of the equities, whether the due administration of justice warrants the termination of an automatic stay.  See Griffin Hospital v. Commission of Hospitals, 196 Conn 451, 458–59, 493 A.2d 229 (1985).  This analysis involves consideration of:  (1) the likely outcome of the appeal;  (2) the irreparability of the prospective harm to the applicant;  and (3) the effect of delay in implementation of the order upon other parties as well as upon the public interest.  See id., 458–59.

In Muti v. Collins, 24 Conn.Sup. 455, 455, 194 A.2d 450, aff'd, 150 Conn. 729, 197 A.2d 935 (1963), the court granted the plaintiff's petition for the taking of depositions of certain city employees to make it possible for the plaintiff to institute her statutory action against the city and one of its firemen.  The city appealed the court's decision, which stayed the taking of the depositions.  See id., 455–56.  The court ultimately held that “the entire purpose of the issuance of the order to perpetuate testimony would be defeated if the depositions [were] delayed beyond the time within which the plaintiff must file her action ․” Id., 456.  The “due administration of justice” and the avoidance of “irreparable injury ․ to [the] plaintiff” required the court to terminate the stay of execution.  Id., 456, 458.  The Appellate Court has held that a judgment creditor's pursuit of postjudgment discovery and the filing of a judgment lien on the judgment debtor's real property do not constitute an action to “enforce or carry out the judgment,” which would be precluded by an automatic appellate stay while the appeal is pending pursuant to § 61–11(a).  All Seasons Services, Inc. v. Guildner, 89 Conn.App. 781, 785, 787, 789, 878 A.2d 370 (2005).  In All Seasons Services, Inc. v. Guildner, the defendant appealed from the trial court's judgment confirming an arbitration award in favor of the plaintiff.  See id., 782.  The plaintiff had filed a judgment lien against the defendant's residence and mailed postjudgment interrogatories to the defendant's counsel.  See id., 783.  The court denied the defendant's “motion to enforce the automatic appellate stay or, alternatively, for a discretionary stay of all postjudgment proceedings pending the outcome of [the] appeal.”  Id., 782, 789.

In the present case, the defendants appealed the court's decision striking the counterclaim in its entirety.  Therefore, an automatic appellate stay is in place pursuant to § 61–11.  However, the balancing of equities in this case results in the determination that the due administration of justice warrants termination of the automatic stay in order for the parties to have the opportunity to argue and the court to decide the motion for escrow.  First, this court has previously found that the defendants failed to comply with General Statutes § 45a–356 and concluded that the counterclaim must be stricken for this reason.  See Micek–Holt v. Papageorge, Superior Court, judicial district of Windham, Docket No. CV–14–6008881–S (April 13, 2015, Calmar, J.) [60 Conn. L. Rptr. 188].  Second, there will be no irreparable harm to the defendants if a stay is lifted because the court is not presently deciding the motion for escrow, but instead determining that the stay may be lifted in order for argument on the motion for escrow to proceed and for the court to address the motion.  Third, there are no other parties that would be harmed if the stay is terminated and there is no public interest at issue.

CONCLUSION

For the foregoing reasons, the court terminates the stay.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. On December 22, 2014, the defendant Kalami Corporation was defaulted for failure to appear..  FN1. On December 22, 2014, the defendant Kalami Corporation was defaulted for failure to appear.

Calmar, Harry E., J.