Citicorp Mortgage, Inc. v. Hairston

640 A.2d 146, 34 Conn. App. 138, 1994 Conn. App. LEXIS 115

Opinion

Per Curiam.

The plaintiff moves to dismiss the defendants’ appeal from a judgment of strict foreclosure. The dispositive issues in this case are whether the appeal is moot, and whether the appeal is frivolous and taken solely for the purpose of delay.

The entry of judgment of strict foreclosure followed the defendants’ failure to file a timely application for protection from foreclosure under General Statutes § 49-3 Id et seq. On appeal, the defendants challenge the adequacy of the notice provision of the statute. In its motion to dismiss, the plaintiff contends that even if the defendants were to prevail on appeal, they would not be eligible for relief in the trial court under § 49-31d et seq. and, as a result, the appeal is frivolous, as well as moot.

Whether the defendants would ultimately be granted relief under the statute is not the proper test for deter mining mootness of an appeal. The test, instead, is whether there is any practical relief this court can grant the appellant.

If this court decides the issues on appeal in favor of the defendants, the defendants will be permitted to submit an application for foreclosure protection pursuant to the provisions of § 49-31d et seq. Because there is some practical relief this court could grant the defendants, the appeal is not moot. See Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); see also Amalgamated Transit Union v. Laid-law Transit, 33 Conn. App. 1, 5, 632 A.2d 713 (1993).

Furthermore, this appeal does not meet the standards for a frivolous appeal under Texaco, Inc. v. Golart, 206 Conn. 454, 464, 538 A.2d 1017 (1988), nor does it fall within the category of appeals taken only for delay as in Wilton v. McGovern, 33 Conn. App. 517, 636 A.2d 870 (1994), and Connecticut National Bank v. Zuckerman, 31 Conn. App. 440, 624 A.2d 1163 (1993).

The plaintiffs motion to dismiss is denied.