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*********************************************** 
CUMMINGS ENTERPRISE, INC. v.

MANUEL MOUTINHO, TRUSTEE

(AC 44437)

Prescott, Moll and Pellegrino, Js.

Syllabus

The plaintiff sought to foreclose a mortgage on certain real property owned

by the defendant. The trial court granted the defendant’s motion to

dismiss, concluding that the plaintiff lacked standing to bring a foreclosure action because any mortgage interest the plaintiff had held in the

subject property had been foreclosed in an earlier action brought by the

defendant, and the plaintiff appealed to this court. After the defendant’s

attorney, in his brief to this court, refuted certain factual representations

made by the plaintiff’s attorney in the plaintiff’s principal brief, the

plaintiff’s attorney failed to clarify the matter in the plaintiff’s reply brief.

During oral argument before this court, when the plaintiff’s attorney was

questioned about the disputed factual representations, he was unable

or unwilling to vouch for the veracity of those statements, did not direct

the court’s attention to any relevant portion of the record, and did not

provide any citation to the record to support those factual assertions.

Approximately one month later, the plaintiff’s attorney filed a motion

with this court for leave to correct the plaintiff’s brief. Held:

1. The plaintiff could not prevail on its challenge to the trial court’s dismissal

of its action; because the plaintiff, who was defaulted for failure to

appear in the prior foreclosure action brought by the defendant, made

no effort to redeem on or before its designated law day, its mortgage

interest was extinguished and, after all law days had passed, title to the

property vested in the defendant, leaving the property no longer subject

to the plaintiff’s mortgage.

2. This court denied the motion for leave to correct the plaintiff’s brief filed

by the plaintiff’s attorney as untimely: the plaintiff’s attorney waited too

long to correct the misrepresentations, and his effort to remedy them

in their entirety was lacking; moreover, the plaintiff’s attorney was

placed on notice that future, similar conduct would result in the imposition of sanctions and/or professional discipline.

Argued January 6—officially released March 8, 2022

Procedural History

Action to foreclose a mortgage on certain real property owned by the defendant, and for other relief,

brought to the Superior Court in the judicial district

of Fairfield, where the court, Spader, J., granted the

defendant’s motion to dismiss and rendered judgment

thereon, from which the plaintiff appealed to this court.

Affirmed; motion denied.

Kenneth A. Votre, for the appellant (plaintiff).

James M. Nugent, for the appellee (defendant).
Opinion

PER CURIAM. The plaintiff, Cummings Enterprise,

Inc., appeals from the judgment of the trial court dismissing for lack of standing its foreclosure action

brought against the defendant, Manuel Moutinho, Trustee

for the Mark IV Construction Co., Inc., 401 (K) Savings

Plan. The court granted the defendant’s motion to dismiss, concluding that the plaintiff lacked standing to

bring a foreclosure action because any mortgage interest that the plaintiff once may have held with respect

to the subject property, an undeveloped building lot in

Stratford, had been foreclosed in an earlier foreclosure

action brought by the defendant. Because the plaintiff,

who was defaulted for failure to appear in the prior

foreclosure action, made no effort to redeem on or

before its designated law day, its mortgage interest was

extinguished, and, after all law days had passed, title

to the property vested in the defendant, leaving the

property no longer subject to the plaintiff’s mortgage.

On appeal, the plaintiff raises a number of convoluted

arguments challenging the court’s granting of the

motion to dismiss. On the basis of our thorough review

of the record, briefs, and applicable law, we conclude

that the plaintiff’s arguments are devoid of merit.

Accordingly, we affirm the judgment of the trial court.

Although further discussion regarding the merits of

the plaintiff’s appeal is unwarranted, we take this opportunity briefly to address certain factual misrepresentations contained in the plaintiff’s brief on appeal. The

plaintiff’s principal argument before the trial court

regarding its standing to pursue the underlying foreclosure action was that the law days that the court set in

the defendant’s previous foreclosure action purportedly

had passed without legal effect due to a bankruptcy

stay or extension period that arose as a result of the

filing of a bankruptcy petition by 10-5th, LLC, an entity

that allegedly had acquired an ownership interest in the

subject property. In its appellate brief, the plaintiff made

the following factual assertions: ‘‘10-5th, LLC, is an

entity that was a party to the previous foreclosure action

and at one point held title to the subject property,’’ and

‘‘[t]he trial court, in the previous foreclosure, was asked

to reset the law days after the dismissal of 10-5th, LLC’s

bankruptcy proceeding.’’ The plaintiff provided no citation to the record to support these factual assertions,

although the brief contained citations to the record with

respect to other factual statements. See Practice Book

§ 67-4.1

In its appellee’s brief, the defendant stated that

these factual representations by the plaintiff were false

and that it is clear from the record that 10-5th, LLC,

was never a party to the defendant’s foreclosure action

and no one ever had asked the trial court to reset the

law days after the dismissal of 10-5th, LLC’s bankruptcy

petition. In its reply brief, the plaintiff’s only response

to the defendant’s assertion that the plaintiff’s brief
contained false factual representations was that the

parties ‘‘differ somewhat in their description of the

underlying facts in this case.’’ The plaintiff again

referred to 10-5th, LLC, as ‘‘one defendant’’ in the previous foreclosure action, implying once again, without

any supporting citation to the record, that 10-5th, LLC,

was a party to that action.

During oral argument before this court, the panel

asked the attorney for the plaintiff, Kenneth A. Votre,

about the disputed factual representations and his failure either to clarify the matter in his reply brief or, if

necessary, to make corrections to the brief prior to oral

argument. Although he asserted on the one hand that

he and/or his staff had verified the veracity of the statements in the brief prior to oral argument, he was unwilling or unable to vouch for the veracity of those statements, could not direct the court’s attention to any

relevant portion of the record, and claimed that, despite

the purported efforts to verify the facts, he might still

be mistaken. Nearly a month after oral argument, the

plaintiff filed a motion with this court titled a ‘‘Request

For Leave To Correct Appellant’s Brief.’’ In that motion,

the plaintiff states that, ‘‘[a]t oral argument it, albeit

late, became apparent to counsel that 10-5th, LLC, was,

in fact, not a party to the prior foreclosure action

. . . .’’ There is no explanation for why this error

occurred and why, despite it having been brought to

counsel’s attention by his opponent, Attorney Votre

failed to correct the misrepresentations in his reply brief

or at oral argument. Instead, counsel took an additional

month to correct his error. The motion also makes

no mention of the other factual misstatement in the

plaintiff’s brief, namely, that, following the dismissal of

10-5th, LLC’s bankruptcy action, a request was made

to the court in the prior foreclosure action to reset the

law days. Nevertheless, this fact is removed from the

proposed amended fact section appended to the plaintiff’s motion.

Attorneys have an obligation to act fairly and with

candor in all of their dealings before the court, which

includes factual statements made in open court or in

pleadings and other written submissions. See, e.g., Daniels v. Alander, 75 Conn. App. 864, 879, 818 A.2d 106

(2003), aff’d, 268 Conn. 320, 844 A.2d 182 (2004). That

obligation is codified in rule 3.3 (a) of the Rules of

Professional Conduct, titled ‘‘Candor toward the Tribunal,’’ which provides in relevant part: ‘‘A lawyer shall

not knowingly . . . (1) [m]ake a false statement of fact

or law to a tribunal or fail to correct a false statement

of material fact or law previously made to the tribunal

by the lawyer . . . .’’ Although, as stated in the commentary to the rule, ‘‘a lawyer in an adversarial proceeding is not required to present an impartial exposition

of the law or to vouch for the evidence submitted in a

cause, the lawyer must not allow the tribunal to be

misled by false statements of law or fact or evidence
that the lawyer knows to be false.’’ (Emphasis added.)

Here, the plaintiff’s attorney was provided with a number of opportunities in which he could have verified

the veracity of the factual representations he made to

this court and, if necessary, corrected any misstatements that were made. In our view, counsel for the

plaintiff waited far too long to correct the misrepresentations, and his effort to remedy them in their entirety

is lacking. Accordingly, because we view his request

for leave to correct the appellant’s brief as untimely,

we deny it. Counsel for the plaintiff is placed on notice

that future, similar conduct will result in the imposition

of sanctions and/or professional discipline.

The judgment is affirmed.

1 Practice Book § 67-4, which governs the content and organization of the

appellant’s brief, provides in relevant part: ‘‘The appellant’s brief shall contain the following . . . (d) A statement of the nature of the proceedings

and of the facts of the case bearing on the issues raised. The statement of

facts shall be in narrative form, shall be supported by appropriate references

to the page or pages of the transcript or to the document upon which the

party relies and shall not be unnecessarily detailed or voluminous. . . .’’

(Emphasis added.)