Speer v. Norwich

***********************************************
    The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
           SHERI SPEER v. CITY OF NORWICH
                     (AC 45169)
                        Cradle, Suarez and Clark, Js.

                                  Syllabus

The self-represented plaintiff appealed to this court from the judgment of
   the trial court dismissing her action seeking to enjoin the defendant
   city of Norwich from proceeding with a tax foreclosure sale of certain
   real property she owned until the state lifted its COVID-19 restrictions.
   The plaintiff alleged, inter alia, that an auction of the property while
   COVID-19 restrictions imposed by the state were in effect would bring
   a lower sale price than would an auction when the COVID-19 restrictions
   were not in place and, thus, result in an unconstitutional taking of her
   property. At the hearing on the defendant’s motion to dismiss, the trial
   court was informed that the property had been sold and that the foreclo-
   sure court had approved the sale. The trial court concluded that the
   plaintiff’s case was moot and that the court therefore lacked subject
   matter jurisdiction. Subsequent to the plaintiff’s filing of her appeal, and
   after the COVID-19 restrictions had been lifted, the trial court was
   informed that the successful bidder had failed to consummate the sale
   and the court ordered his deposit forfeited, thereby leaving the property
   unsold. Held that the trial court properly dismissed the plaintiff’s action
   for lack of subject matter jurisdiction, as the sale of the property had
   been approved by the court at the time of the hearing on the defendant’s
   motion to dismiss, and the plaintiff’s appeal was moot, as there was no
   practical relief this court could grant her because the next foreclosure
   auction of the property would occur without any COVID-19 restrictions
   in place; moreover, contrary to the plaintiff’s assertion, her case did not
   fall within the capable of repetition, yet evading review exception to
   the mootness doctrine, as this court was not convinced that her action
   or its effect was of a limited duration such that it would become moot
   before appellate litigation could be concluded, nor was this court per-
   suaded that the questions posed were likely to arise in the future or
   that issues of public importance were involved in the plaintiff’s appeal.
 Submitted on briefs October 12—officially released December 13, 2022

                             Procedural History

  Action, inter alia, to enjoin the defendant from pro-
ceeding with a foreclosure action against certain of the
plaintiff’s real property, and for other relief, brought to
the Superior Court in the judicial district of New Lon-
don, where the court, Young, J., granted the defendant’s
motion to dismiss and rendered judgment thereon, from
which the plaintiff appealed to this court. Appeal dis-
missed.
  Sheri Speer, self-represented, filed a brief as the appel-
lant (plaintiff).
  Aimee L. Siefert filed a brief for the appellee (defen-
dant).
                         Opinion

   PER CURIAM. In the underlying action, the self-repre-
sented plaintiff, Sheri Speer, sought injunctive relief
that would effectively prohibit the defendant, the city
of Norwich, from proceeding with a tax foreclosure
sale of real property she owned. The plaintiff appeals
from the trial court’s granting of a motion to dismiss
in favor of the defendant. The court determined that
the issues raised in the action were moot and, thus, it
lacked subject matter jurisdiction over her action. On
appeal, the plaintiff claims that (1) the court erred in
finding that the matter was moot, (2) even if the matter
was moot, the collateral consequences doctrine still
applies, and (3) the court ‘‘improperly den[ied] [her]
due process by not enjoining the tax sale proceedings
to which she was not a party and to which were sub-
jected to the impaired functionality and limitations on
higher bids imposed [by] COVID-19 restrictions.’’ We
dismiss the appeal as moot.
  The following undisputed facts and procedural his-
tory are relevant to the resolution of this appeal. In a
prior tax foreclosure action brought by the defendant
against the Brenton Family Trust, the plaintiff moved
to intervene, asserting that she had become the owner
of record of the subject property. The trial court, Hon.
Emmet L. Cosgrove, judge trial referee, denied her
motion to intervene. After the court, Calmar, J., ren-
dered judgment in the defendant’s favor, the plaintiff
appealed to this court, challenging the trial court’s
denial of her motion to intervene. This court affirmed
the judgment of foreclosure by sale and remanded the
case to the trial court for the purpose of setting a new
sale date. See Norwich v. Brenton Family Trust, 

, 

 (2021). After the subject
property was sold at a public auction on September 18,
2021, and the sale was approved by the trial court,
Calmar, J., on October 13, 2021, the plaintiff brought
a subsequent appeal in that action, which this court
dismissed on November 18, 2021. See Norwich v. Bren-
ton Family Trust, Superior Court, judicial district of
New London, Docket No. CV-XX-XXXXXXX-S (October 25,
2021), appeal dismissed, Connecticut Appellate Court,
Docket No. AC 45071 (November 18, 2021).
   On June 15, 2021, while the foreclosure action was
still pending, the plaintiff filed the underlying action
against the defendant. The plaintiff alleged that, due to
COVID-19 restrictions imposed by the state of Connecti-
cut, a tax foreclosure auction of property of which she
was the record owner would result in the land being
sold at a lower price than it otherwise would be without
the restrictions in place.1 The result, she alleged, would
be an unconstitutional taking of her property. The plain-
tiff sought a temporary and permanent injunction pre-
venting the foreclosure sale of the property until the
state lifted its COVID-19 restrictions, as well as dam-
ages, costs, and other relief that the court deemed fair
and proper.
  On June 23, 2021, the defendant filed a motion to
dismiss. In that motion, the defendant argued that the
plaintiff’s action was barred by the prior pending action
doctrine because the trial court had previously denied
the plaintiff’s motion to intervene in the foreclosure
action, which involved the same facts and issues. In
response, the plaintiff filed a memorandum of law
opposing the motion to dismiss in which she argued that
the prior pending action doctrine did not bar her action.
  On November 1, 2021, the court, Young, J., heard
arguments from the parties on the motion to dismiss.
At the hearing, the defendant informed the court that
the subject property had been sold and that the court
had approved the sale. The court ordered each party
to brief the issue of whether the matter had become
moot. The parties each filed briefs on the matter, and,
on November 29, 2021, the court issued a memorandum
of decision in which it granted the defendant’s motion
to dismiss. The court, rejecting the plaintiff’s reliance
on the existence of an appellate stay in connection with
appeals that she had filed as a nonparty in connection
with the foreclosure action, ruled that the matter was
moot because the property at issue had been sold and
the court had approved the sale. This appeal followed.
   In her principal brief on appeal, the plaintiff argues
that the court had subject matter jurisdiction because
the matter was not moot, that the collateral conse-
quences doctrine would apply even if the matter was
otherwise moot, and that she was denied due process
under the fifth amendment to the United States constitu-
tion. Thereafter, the defendant submitted its brief, not-
ing therein that ‘‘the successful bidder [in the completed
and approved foreclosure sale had] . . . forfeited his
deposit, and the [trial] court has scheduled argument
to reset the sale date. In addition, [the plaintiff] has
also become a party to that pending action . . . .’’ On
October 14, 2022, this court ordered both parties to
submit supplemental briefs ‘‘addressing whether this
appeal should be dismissed as moot because (1) the
restrictions associated with the COVID-19 pandemic
that form the basis for the plaintiff’s request for injunc-
tive relief in this action have expired, and (2) the partic-
ular tax foreclosure sale of which the plaintiff com-
plains was not consummated and the successful
[bidder’s] deposit was ordered forfeited on May 26,
2022.’’
   On October 24, 2022, the plaintiff filed her supplemen-
tal brief. Importantly, she does not appear to dispute
the facts about the failed sale or the fact that the restric-
tions of which she complained are no longer in effect.
She argues that the matter is reviewable, regardless of
mootness, under the capable of repetition, yet evading
review exception to the mootness doctrine.2 The defen-
dant, on November 4, 2022, filed its supplemental brief,
arguing therein that the matter is moot because ‘‘there
is no practical relief this court can order, the gathering
restrictions are lifted, and foreclosure sales can con-
tinue as they were [prior to the period of time during
which COVID-19 pandemic restrictions were in effect].’’
We are persuaded by the defendant.
   ‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction. . . . Because
courts are established to resolve actual controversies,
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable . . . . Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy [is] capable of being adjudicated
by judicial power . . . and (4) that the determination
of the controversy will result in practical relief to the
complainant. . . . A case is considered moot if [the
court] cannot grant the appellant any practical relief
through its disposition of the merits . . . . Because
mootness implicates this court’s subject matter jurisdic-
tion, it raises a question of law over which we exercise
plenary review. . . .
   ‘‘It is a well-settled general rule that the existence
of an actual controversy is an essential requisite to
appellate jurisdiction; it is not the province of appellate
courts to decide moot questions, disconnected from the
granting of actual relief or from the determination of
which no practical relief can follow. . . . An actual
controversy must exist not only at the time the appeal
is taken, but also throughout the pendency of the
appeal. . . . When, during the pendency of an appeal,
events have occurred that preclude an appellate court
from granting any practical relief through its disposition
of the merits, a case has become moot.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Martocchio v. Savoir, 

, 230,

, cert. denied, 

, 

 (2015).
  In her complaint, the plaintiff sought injunctive relief
preventing a foreclosure auction of the property until
the governor ended all COVID-19 restrictions. Since her
complaint was filed, the COVID-19 restrictions that she
complained of have been lifted. Additionally, since this
appeal was filed, the court ordered the successful bid-
der’s deposit forfeited, and, therefore, the subject prop-
erty has not been sold. It is not disputed that, when
the property is put up for sale at the next foreclosure
auction, the auction will occur without any COVID-19
restrictions in place. As such, there is no practical relief
that this court can grant the plaintiff.
  We are not persuaded by the plaintiff’s argument that,
even if the matter is otherwise moot, this court should
still adjudicate it because the capable of repetition, yet
evading review exception applies. For this exception
to the mootness doctrine to apply, the court must find
all three of the following: ‘‘First, the challenged action,
or the effect of the challenged action, by its very nature
must be of a limited duration so that there is a strong
likelihood that the substantial majority of cases raising
a question about its validity will become moot before
appellate litigation can be concluded. Second, there
must be a reasonable likelihood that the question pre-
sented in the pending case will arise again in the future,
and that it will affect either the same complaining party
or a reasonably identifiable group for whom that party
can be said to act as surrogate. Third, the question
must have some public importance. Unless all three
requirements are met, the appeal must be dismissed as
moot.’’ Loisel v. Rowe, 

, 382–83, 

 (1995).
   In her brief, the plaintiff does not explain why the
issue raised in this action—COVID-19 restrictions
affecting a foreclosure sale—is, by its nature, of a lim-
ited duration such that there is a strong likelihood that
the majority of cases seeking to raise the issue in the
future will become moot before appellate litigation can
be concluded. Furthermore, she does not address why
there would be a reasonable likelihood of this question
arising in the future. She merely states in a conclusory
fashion that there could be ‘‘likely subsequent repeats of
the same fact patterns involving similar subject matter.’’
Finally, without stating what other questions of public
importance this issue raises, she argues in her brief
that ‘‘there does exist a substantial question—indeed,
several questions—of public importance.’’
   We are not convinced that the present action or the
effect of it is, by its nature, of a limited duration so that
it would become moot before appellate litigation can
be concluded. Furthermore, because the restrictions
that were put in place in connection with the COVID-19
pandemic—itself an uncommon historic event—have
been lifted, we are not persuaded that the questions
posed in this appeal are likely to arise in the future.
Last, we are not persuaded by the plaintiff’s bald asser-
tion that issues of public importance are involved in
this appeal. Accordingly, the capable of repetition, yet
evading review exception to the mootness doctrine is
not applicable to this case.
      The appeal is dismissed.
  1
      Specifically, the plaintiff alleged that state government mandates requir-
ing the wearing of face masks, requiring social distancing, limiting crowds,
and imposing ‘‘rent holidays’’ resulted in artificially low real estate prices
at foreclosure auctions.
    2
      Additionally, in her supplemental brief, the plaintiff claims that ‘‘[t]he
effects of the sale constituted an unjust taking, even though the deposit
was forfeited.’’ Because her second claim is outside the scope of the issue
that this court ordered the parties to brief, we decline to review it. See,
e.g., Demarest v. Fire Dept., 

, 

 (2003)
(‘‘[o]rdinarily, an issue may not be raised for the first time in a supplemental
brief when the court has not ordered supplemental briefing on that issue’’).