Berglass v. Dworkin

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Berglass v. Dworkin

STEVEN BERGLASS, TRUSTEE (STEVEN BERGLASS
REVOCABLE LIVING TRUST) v. HEIDI
DWORKIN ET AL.
(AC 46424)
Moll, Westbrook and Pellegrino, Js.
Syllabus
The plaintiff appealed from the trial court’s judgment dismissing his action,
which sought, inter alia, an injunction requiring the defendants to cease
construction on an inground pool at their property, which adjoined property
owned by the plaintiff. The plaintiff claimed, inter alia, that the court improp-
erly dismissed his action without providing notice and an opportunity to
be heard following a hearing on his motion for a temporary injunction, to
which the defendants had filed an objection. Held:
The trial court improperly dismissed, sua sponte, the entirety of the plaintiff’s
complaint as moot, an issue that was not raised in the defendants’ objection
to the plaintiff’s motion for a temporary injunction, as, although the court
could have raised the issue of mootness sua sponte regarding the plaintiff’s
action rather than considering only the motion for a temporary injunction,
the court expressly informed the parties that it would decide only whether
the plaintiff’s motion for a temporary injunction was moot and that the
merits of the complaint would be determined at a later date, and, therefore,
the plaintiff had no warning or notice that his entire action, rather than his
motion for a temporary injunction, was subject to dismissal by the court,
which deprived the plaintiff of due process.
The trial court’s factual findings regarding the merits of the plaintiff’s com-
plaint were clearly erroneous, as the court did not hold a hearing and no
evidence was presented to support such findings.
Argued June 2—officially released September 2, 2025

Procedural History

Action seeking, inter alia, an injunction requiring the
defendants to cease certain construction on their prop-
erty until a proper coastal site plan review and engi-
neered design has been obtained, and other relief,
brought to the Superior Court in the judicial district of
New Haven, where the plaintiff filed a motion for a
temporary injunction, to which the defendants filed an
objection; thereafter, the court, Wilson, J., rendered
judgment dismissing the action, from which the plaintiff
appealed to this court. Reversed; further proceedings.
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Berglass v. Dworkin

Michael S. Taylor, with whom were Brendon P. Lev-
esque and, on the brief, Corinne A. Burlingham and
Keith R. Ainsworth, for the appellant (plaintiff).
Michael T. Cretella, with whom, on the brief, was
Samantha R. Guere, for the appellees (defendants).
Opinion

PELLEGRINO, J. The plaintiff, Steven Berglass,
trustee of the Steven Berglass Revocable Living Trust,
appeals from the judgment of the trial court dismissing
his complaint against the defendants, Heidi Dworkin
and Jay Dworkin. On appeal, the plaintiff claims that
the court improperly dismissed his action without pro-
viding notice and the opportunity to be heard following
a hearing on the plaintiff’s motion for a temporary
injunction, to which the defendants had filed an objec-
tion. He further claims that the court improperly made
findings of fact in the absence of any evidence. We
agree with the plaintiff as to both of his claims, and,
accordingly, reverse the judgment of the trial court.
The following facts, as alleged in the plaintiff’s com-
plaint and construed in his favor,1 and procedural his-
tory are relevant to our resolution of this appeal. In
count one of his complaint dated April 5, 2022, the
plaintiff alleged that the defendants own property adja-
cent to property owned by the plaintiff. Both properties
are located on King’s Highway in Milford. On or about
March 30, 2022, the defendants began the construction
of an inground swimming pool within a few feet of a
seawall that ran contiguous to the properties. The plain-
tiff alleged that the construction of the pool presented
a reasonable likelihood of impairment to both coastal
resources and neighboring properties, as the pool was
not designed to minimize interference with sediment
and the deflection of wave energy or to be anchored
1
See Hepburn v. Brill, 348 Conn. 827, 831 n.2, 312 A.3d 1 (2024); SG
Pequot 200, LLC v. Fairfield, 223 Conn. App. 333, 339, 308 A.3d 123, cert.
denied, 348 Conn. 954, 309 A.3d 304 (2024).
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Berglass v. Dworkin

to the subsurface ledge so as to prevent the pool from
becoming dislodged during flooding, which could
potentially damage the nearby structures. Additionally,
this pool was within the definition of a flood and erosion
control structure as defined by the Connecticut Coastal
Management Act, General Statutes § 22a-109 (b) and
(c) (act), but had not been subject to the required
coastal site plan review. The plaintiff further alleged
that the defendants’ planned pool posed a threat that
would impact sediment transport and potentially cause
greater erosion.
In count two of the complaint, the plaintiff incorpo-
rated most of the allegations set forth in count one and
further asserted that the proposed pool, in the absence
of a coastal site plan review and appropriate engi-
neering design, was an unreasonable act and violated
the public trust protected by the act. In his demand for
relief, the plaintiff sought, inter alia, injunctive relief
and reasonable attorney’s fees.2
On April 6, 2022, the plaintiff filed a motion for
a temporary injunction and an order to show cause
pursuant to General Statutes §§ 52-4713 and 22a-
2
Specifically, the plaintiff requested:
‘‘1. Declaratory and injunctive relief against the defendants, requiring
[them] to refrain from construction of their in-ground pool structure until
a proper coastal site plan review and engineered design has been obtained
pursuant to General Statutes §§ 22a-16 and 52-471.
‘‘2. The reasonable attorney’s fees and costs of this action pursuant to
General Statutes § 22a-18 (e).
‘‘3. That the court exercise its continuing jurisdiction to ensure that the
defendants [restore] the buffer area in between the seawall and the [defen-
dants’] home and [reorient] the pool structure.
‘‘4. Any other legal or equitable relief which the court in its discretion
deems proper.’’
3
General Statutes § 52-471 (a) provides: ‘‘Any judge of any court of equita-
ble jurisdiction may, on motion, grant and enforce a writ of injunction,
according to the course of proceedings in equity, in any action for equitable
relief when the relief is properly demandable, returnable to any court, when
the court is not in session. Upon granting of the writ, the writ shall be of
force until the sitting of the court and its further order thereon unless sooner
lawfully dissolved.’’
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16. Specifically, he requested that the court issue an
4

order directing the defendants, their agents, and any
person under their control to cease all construction
related to the pool. In support of this motion, the plain-
tiff asserted that the construction of the defendants’
pool would violate the General Statutes and Milford
zoning regulations and that there was a reasonable like-
lihood that the construction would endanger the public
trust in coastal resources and the plaintiff’s home during
a coastal storm event. The plaintiff further stated that
there was no adequate remedy at law other than an
injunction to prevent the defendants from causing
immediate and irreparable harm.5
4
General Statutes § 22a-16 provides in relevant part: ‘‘[A]ny person, part-
nership, corporation, association, organization or other legal entity may
maintain an action in the superior court for the judicial district wherein the
defendant is located, resides or conducts business . . . for declaratory and
equitable relief against . . . any person . . . acting alone, or in combina-
tion with others, for the protection of the public trust in the air, water and
other natural resources of the state from unreasonable pollution, impairment
or destruction . . . .’’
5
This court has recited the following well settled standard regarding a
motion for a temporary injunction. ‘‘In general, a court may, in its discretion,
exercise its equitable power to order a temporary injunction pending final
determination of the order, upon a proper showing by the movant that if
the injunction is not granted he or she will suffer irreparable harm for which
there is no adequate remedy at law. . . . A party seeking injunctive relief
must demonstrate that: (1) it has no adequate remedy at law; (2) it will
suffer irreparable harm without an injunction; (3) it will likely prevail on
the merits; and (4) the balance of equities tips in its favor. . . . The plaintiff
seeking injunctive relief bears the burden of proving facts which will estab-
lish irreparable harm as a result of that violation. . . . Moreover, [t]he
extraordinary nature of injunctive relief requires that the harm complained
of is occurring or will occur if the injunction is not granted. Although an
absolute certainty is not required, it must appear that there is a substantial
probability that but for the issuance of the injunction, the party seeking it
will suffer irreparable harm. . . . Further, [a] party seeking injunctive relief
has the burden of alleging and proving irreparable harm and lack of an
adequate remedy at law. The allegations and proof are conditions precedent
to the granting of an injunction.’’ (Citation omitted; internal quotation marks
omitted.) United Public Service Employees Union, Cops Local 062 v. Ham-
den, 209 Conn. App. 116, 123–24, 267 A.3d 239 (2021); see also Aqleh v.
Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97–98, 10 A.3d 498 (2010).
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A remote hearing regarding the plaintiff’s motion for
a temporary injunction was scheduled for May 3, 2022,
and then for June 20, 2022, but did not occur on either
of those dates. On November 16, 2022, the defendants
filed an objection to the plaintiff’s motion for a tempo-
rary injunction. Therein, they argued that, prior to hear-
ing evidence from the parties regarding the injunction
sought by the plaintiff, the court needed to determine
whether his motion was moot. The defendants asserted
that the construction of the pool had been completed,
and, therefore, the court ‘‘[could not] grant the specific
relief requested in [the plaintiff’s] motion for temporary
injunction.’’ As a result, the court lacked subject matter
jurisdiction with respect to the plaintiff’s motion for a
temporary injunction.
The same day, the plaintiff filed a response to the
defendants’ objection. At the outset, the plaintiff claimed
that the defendants’ objection was, in effect, a motion
to dismiss.6 Next, he disputed the defendants’ claim
that the court could not provide the plaintiff with any
practical relief. The court conducted a hearing on
November 17, 2022.
At the outset of the hearing, the court established
the scope of the proceeding: ‘‘This is a hearing specifi-
cally on, as it has been docketed, the plaintiff’s motion
for a temporary injunction. I want to be clear I’m not
hearing the merits of the underlying complaint. . . .
[T]here is an objection to the motion for temporary
injunction based on mootness which implicates the
court’s subject matter jurisdiction.’’ (Emphasis added.)
The defendants’ counsel represented that the construc-
tion of the pool had been completed,7 and, therefore,
See, e.g., State v. Taylor, 91 Conn. App. 788, 791–92, 882 A.2d 682 (numer-
6

ous cases have recognized that motion is to be decided on basis of substance
of relief sought rather than on form or label affixed to motion), cert. denied,
276 Conn. 928, 889 A.2d 819 (2005).
7
The defendants’ counsel represented to the court that construction of
the pool had been completed substantially by July, 2022, and that the final
inspections of the construction had occurred in September, 2022.
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the court could not grant the specific relief that had
been requested by the plaintiff in his motion for a tempo-
rary injunction, that is, an order stopping the construc-
tion of the pool. The defendants’ counsel emphasized
that the only relief sought in the plaintiff’s motion was
an order that the construction of the pool cease. He
agreed with the court, however, that the complaint
sought additional relief beyond that which was stated
in the motion for a temporary injunction.
In addressing the plaintiff’s counsel, the court remarked:
‘‘Pursuant to your motion for a temporary injunction
. . . you indicated that the scope of the relief requested
is a temporary injunction. That’s what this is down for
today. I’m not here to hear the merits of the case. You’re
[going to] get your trial on that.’’ Following a colloquy
regarding the reasons for the delay of the hearing, the
court asked the plaintiff’s counsel to identify where in
the motion for a temporary injunction he had requested
injunctive relief in addition to stopping the construction
of the pool. The plaintiff’s counsel responded that, at
the time that his motion was filed, the construction of
the pool was ongoing. The court responded: ‘‘That may
be and you may . . . have redress as to that, but today
. . . it’s down for a hearing on a temporary injunction
pursuant to the motion for the temporary injunction.
You may very well get injunctive relief as you so frame
it to be in the underlying case . . . . You may get all
of that. You may be successful. That’s the merits. I’ll
get you a quick hearing on the merits, too, but I’m
talking specifically about the requested relief in the
motion for temporary injunction.’’
During his response, the plaintiff’s counsel indicated
that he was requesting the court to consider ordering
the defendants to ‘‘tear down’’ the pool structure. The
court noted that this request was not part of the motion
for a temporary injunction. The plaintiff’s counsel main-
tained that destruction of the pool was ‘‘one of the
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potential solutions’’ to the matter. The court iterated
that such a request was not part of the temporary injunc-
tion that presently was before it and that the relief
requested in the plaintiff’s motion was ‘‘very, very spe-
cific.’’
The court further explained to counsel that it was
‘‘not taking one step further on the merits of the injunc-
tion until the—the jurisdictional issue is resolved.’’
Later, the court stated to the plaintiff’s counsel that it
would consider any authority to support the claim that
it had jurisdiction over the motion for a temporary
injunction seeking to have the defendants cease and
desist construction of the pool, even though such con-
struction had been completed. It cautioned the plain-
tiff’s counsel, however, that the only matter it would
consider would be whether the court had jurisdiction as
to the plaintiff’s efforts to obtain a temporary injunction
and the relief requested in that particular motion. The
court further indicated that, after the jurisdictional
question regarding the motion for a temporary injunc-
tion had been decided, a hearing on the merits of the
plaintiff’s case would be scheduled shortly thereafter.
The court then discussed additional matters with coun-
sel. The defendants’ counsel remarked that they had
not conducted any discovery. Additionally, although
the plaintiff had disclosed two expert witnesses, the
defendants had not yet retained any experts.
At the conclusion of the hearing, the court indicated
that the plaintiff’s counsel would have one week to
file a supplemental memorandum of law regarding the
defendants’ efforts to dismiss his motion for a tempo-
rary injunction.8 The defendants’ counsel would then
have one week to file a response. The court issued a
written order regarding the deadlines for the parties’
8
The court acknowledged, at that point in the hearing, that the defendants’
objection was ‘‘actually a motion to dismiss . . . .’’
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supplemental briefing and scheduled a court trial on
the merits of the plaintiff’s complaint for February 8,
2023.9 The supplemental memoranda were filed on
November 23 and December 2, 2022, by the plaintiff
and the defendants, respectively.

On March 15, 2023, the court issued its memorandum
of decision. At the outset, the court iterated that the
defendants’ objection to the plaintiff’s motion claimed
a lack of subject matter jurisdiction on the ground of
mootness and therefore would be treated as a motion
to dismiss. The court then noted that the plaintiff argued
that the relief he requested in his motion was broader
than stopping the construction of the pool, which had
been completed. The court explained that the plaintiff
claimed that his complaint included a request to enforce
state statutes protecting coastal resources and to pro-
tect his property from coastal erosion. The plaintiff
further sought to restore the buffer area between the
seawall and the defendants’ home.

The court reasoned that a cause of action for injunc-
tive relief to stop construction is moot if that project
has been completed.10 It then determined that, ‘‘[i]n the
present action, the construction of the defendants’ pool
. . . has been finished for several months; therefore,
9
A trial on the merits did not occur on the scheduled date of February
8, 2023.
10
‘‘Connecticut courts have rejected injunctive remedies on the ground
of mootness where the issue before the court has been resolved or has
lost its significance because of intervening circumstances. See Waterbury
Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249–52, 440
A.2d 310 (1982) (court dismissed as moot plaintiff’s request for injunctive
relief to restrain picketing during strike because strike and picketing had
ended while appeal was pending); Daley v. Gaitor, 16 Conn. App. 379, 381
n.2, 547 A.2d 1375 (court dismissed as moot plaintiff’s request to enjoin city
of Hartford from administering promotional examination to police officers
following city’s promotion of officers during pendency of appeal), cert.
denied, 209 Conn. 824, 552 A.2d 430 (1988).’’ Connecticut Coalition Against
Millstone v. Rocque, 267 Conn. 116, 126, 836 A.2d 414 (2003).
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there can be no injunctive relief to stop the construc-
tion. As the pool has been fully constructed, the claims
for injunctive relief are moot.’’ After discussing various
cases, the court stated that the plaintiff was not seeking
an order to prevent the defendants from using their
pool and that the destruction of the pool would not
provide the plaintiff with any practical relief.
The court expanded its consideration of the jurisdic-
tional analysis to the plaintiff’s complaint, going beyond
the question of whether the motion for a temporary
injunction was moot. It concluded that it was not practi-
cal to order the defendants to anchor the pool to the
seawall, as the plaintiff had suggested in his supplemen-
tal memorandum. Without having conducted an eviden-
tiary hearing, the court found that such anchoring
‘‘would not prevent the type of harm such as erosion,
flooding, and potential damage to property that [the
plaintiff] seeks to prevent. If a storm dislodged the
pool, anchors might also be dislodged. Anchoring to
the seawall could potentially damage the seawall, which
would lead to a greater threat of flooding and erosion.
Reorientation of the pool is also not practical because
it would require destruction of the pool [which would
be impractical].’’ Ultimately, the court concluded that
the plaintiff’s entire case was moot because it could
not afford the plaintiff any practical relief and dismissed
the plaintiff’s complaint.
On March 28, 2023, pursuant to Practice Book § 11-
11, the plaintiff moved for reargument and reconsidera-
tion of the court’s order and entry of judgment. Specifi-
cally, the plaintiff asserted that the sole issue raised in
the defendants’ objection was whether the motion for
a temporary injunction was moot because the construc-
tion of the pool had been completed and the plaintiff
could not obtain any practical relief in that regard. He
also claimed that no affidavits had been filed to provide
a basis for the court to find facts in its memorandum
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of decision regarding the practicality and potential neg-
ative effects of anchoring the pool to the seawall. The
plaintiff further contended that such facts could not be
judicially noticed. The defendants filed an opposition
on April 6, 2023.
On April 10, 2023, the court issued an order denying
the plaintiff’s motion for reconsideration and reargu-
ment. Citing to Practice Book § 11-12 (c), and this
court’s decision in Opoku v. Grant, 63 Conn. App. 686,
692–93, 778 A.2d 981 (2001), the trial court concluded:
‘‘Because this court did not overlook any controlling
principles of law or misapprehend any facts in its deci-
sion, [the plaintiff’s] motion for reconsideration is
denied.’’ This appeal followed. Additional facts will be
set forth as necessary.
On appeal, the plaintiff principally claims that the
court improperly dismissed the case on the basis of
grounds not raised in the defendants’ opposition to his
motion for a temporary injunction and that this deprived
him of notice and an opportunity to respond. Specifi-
cally, the plaintiff argues that our rules of practice and
due process require that he be afforded notice and a
meaningful opportunity to be heard on the issues before
the court dismissed the complaint. We agree.
‘‘We begin our discussion by setting forth the well
settled standard of review that governs an appeal from
a judgment granting a motion to dismiss on the ground
of a lack of subject matter jurisdiction. A motion to
dismiss properly attacks the jurisdiction of the court,
essentially asserting that the plaintiff cannot as a matter
of law and fact state a cause of action that should be
heard by the court. . . . A court deciding a motion to
dismiss must determine not the merits of the claim or
even its legal sufficiency, but rather, whether the claim
is one that the court has jurisdiction to hear and decide.
. . . [B]ecause [a] determination regarding a trial
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Berglass v. Dworkin

court’s subject matter jurisdiction is a question of law,
our review is plenary.’’ (Internal quotation marks omit-
ted.) Lewis v. Freedom of Information Commission,
202 Conn. App. 607, 612, 246 A.3d 507 (2021); see also
Derblom v. Archdiocese of Hartford, 203 Conn. App.
197, 206, 247 A.3d 600 (2021), aff’d, 346 Conn. 333, 289
A.3d 1187 (2023).
‘‘Mootness . . . implicates subject matter jurisdic-
tion, which imposes a duty on the [trial] court to dismiss
a case if the court can no longer grant practical relief
to the parties. . . . Mootness presents a circumstance
wherein the issue before the court has been resolved
or had lost its significance because of a change in the
condition of affairs between the parties. . . . A case
becomes moot when due to intervening circumstances
a controversy between the parties no longer exists.’’
(Citations omitted; internal quotation marks omitted.)
We the People of Connecticut, Inc. v. Malloy, 150 Conn.
App. 576, 581, 92 A.3d 961 (2014).
In this appeal, the plaintiff asserts that he was denied
his rights to notice and the opportunity to be heard in
violation of his due process rights and our rules of
practice. This court recently stated: ‘‘Whether a party
was deprived of his [or her] due process rights is a
question of law to which appellate courts grant plenary
review. . . . The core interests protected by proce-
dural due process concern the opportunity to be heard
at a meaningful time and in a meaningful manner. . . .
Fundamental tenets of due process require that all per-
sons directly concerned in the result of an adjudication
be given reasonable notice and opportunity to present
their claims or defenses. . . . It is the settled rule of
this jurisdiction, if indeed it may not be safely called
an established principle of general jurisprudence, that
no court will proceed to the adjudication of a matter
involving conflicting rights and interests, until all per-
sons directly concerned in the event have been actually
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Berglass v. Dworkin

or constructively notified of the pendency of the pro-
ceeding, and given reasonable opportunity to appear
and be heard. . . . It is fundamental in proper judicial
administration that no matter shall be decided unless
the parties have fair notice that it will be presented in
sufficient time to prepare themselves upon the issue.
. . .
‘‘Our Supreme Court has stated that, [f]or more than
a century the central meaning of procedural due process
has been clear: Parties whose rights are to be affected
are entitled to be heard; and in order that they may
enjoy that right they must first be notified. . . . It is
equally fundamental that the right to notice and an
opportunity to be heard must be granted at a meaningful
time and in a meaningful manner. . . . Due process,
unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and cir-
cumstances. . . . Instead, due process is a flexible
principle that calls for such procedural protections as
the particular situation demands. . . . [T]hese princi-
ples require that a [party] have . . . an effective oppor-
tunity to defend by confronting any adverse witnesses
and by presenting his [or her] own arguments and evi-
dence orally.’’ (Citations omitted; internal quotation
marks omitted.) Cameron v. Santiago, 223 Conn. App.
836, 842–43, 310 A.3d 391 (2024); see also Pritchard v.
Pritchard, 103 Conn. App. 276, 287–88, 928 A.2d 566
(2007). Simply stated, ‘‘[a] party also has a right to fair
notice that a court may render a judgment with respect
to a given issue.’’ (Internal quotation marks omitted.)
Haynes Construction Co. v. Cascella & Son Construc-
tion, Inc., 36 Conn. App. 29, 36, 647 A.2d 1015, cert.
denied, 231 Conn. 916, 648 A.2d 152 (1994).
We are guided by this court’s decision in Jackson v.
Pennymac Loan Services, LLC, 205 Conn. App. 189,
257 A.3d 314 (2021). In that case, the plaintiffs alleged
that the defendant had failed to provide a timely release
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Berglass v. Dworkin

of their mortgage in violation of General Statutes § 49-
8 (c). Id., 191. After filing an answer and special
defenses, the defendant moved to dismiss the action
on the basis of lack of subject matter jurisdiction
because the plaintiffs were not aggrieved classically or
statutorily. Id., 193. In the alternative, the defendant
moved for summary judgment. Id. The trial court
granted the defendant’s motion to dismiss, not on a
basis raised in that motion, but on the basis that the
plaintiffs failed to comply with the provisions of § 49-
8 as alleged in the complaint. Id. ‘‘Although the court
never notified the plaintiffs that it was considering
granting the motion to dismiss on grounds that it had
raised sua sponte concerning the plaintiffs’ compliance
with the statutory demand notice requirements in § 49-
8 (c), it, nonetheless, did so.’’ Id.
On appeal, the plaintiffs claimed that, in dismissing
their action on a basis it raised sua sponte, the court
violated their right to due process. Id., 194. ‘‘The plain-
tiffs specifically contend that the defendant did not
raise in its motion to dismiss the issue of their alleged
failure to satisfy the statutory demand notice require-
ments in § 49-8 (c), and that the court did not give
them notice or an opportunity to be heard and present
evidence of their compliance on that issue before it
determined that their failure to satisfy those statutory
requirements caused them to lack standing.’’ Id. In
agreeing with the plaintiffs, we first observed that the
question of whether a party has been deprived of due
process presents a question of law. Id., 194–95. Next,
this court explained that the issue of the plaintiffs’ pur-
ported failure to comply with the requirements of § 49-
8 was not raised by the defendant in its motion to
dismiss, the accompanying memorandum of law, or
during argument on the motion to dismiss. We then
stated: ‘‘A fundamental premise of due process is that
a court cannot adjudicate any matter unless the parties
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have been given a reasonable opportunity to be heard
on the issues involved . . . . Generally, when the exer-
cise of the court’s discretion depends on issues of fact
which are disputed, due process requires that a trial-
like hearing be held, in which an opportunity is provided
to present evidence and to cross-examine adverse wit-
nesses. . . . We conclude that the court improperly
addressed, sua sponte, the issue of the plaintiffs’ alleged
noncompliance with the statutory demand notice
requirements in § 49-8 (c) without first providing the
plaintiffs with notice or a reasonable opportunity to
submit evidence of their compliance with those require-
ments. Additionally, the plaintiffs did not have an oppor-
tunity to contest whether they were required to demon-
strate on the notice that was attached to the complaint
that the notice had been received by the defendant
mortgagee or its attorney.’’ (Citations omitted; internal
quotation marks omitted.) Id., 195–96. Finally, we noted
that, if the defendant wanted to place the plaintiffs on
notice that it sought to have its motion granted on the
basis of noncompliance with the requirements of § 49-
8, ‘‘it needed to raise the issue in connection with its
motion to dismiss.’’ (Emphasis omitted.) Id., 197; see
also Brownstone Exploration & Discovery Park, LLC
v. Borodkin, 220 Conn. App. 806, 820, 299 A.3d 1189
(2023) (trial court generally acts in excess of its author-
ity when it sua sponte raises and considers issues not
raised or briefed by parties); Haynes Construction Co.
v. Cascella & Son Construction, Inc., supra, 36 Conn.
App. 36–37 (when trial court surprises party by deciding
case on claim that was not presented to it, that party
obviously is not in position to counter said claim).

In the present case, the defendants filed an objection
to the plaintiff’s motion for a temporary injunction,
which the court and the parties treated as a motion to
dismiss. During the hearing, the court frequently and
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unequivocally indicated that the scope of the proceed-
ings would be limited to whether the motion for a tem-
porary injunction was moot and that it would not con-
sider the merits of the underlying complaint. For
example, the court stated: ‘‘What’s only [going to] be
considered is [the] motion for [a] temporary injunction
and the relief requested therein [and the defendants’
objection thereto] . . . .’’ Later, the court noted that
its decision would be ‘‘on the present motion for a
temporary injunction that’s before me.’’ The court also
instructed the plaintiff’s counsel to identify where in
the motion for a temporary injunction he had requested
injunctive relief other than ceasing the construction of
the pool. It distinguished the relief requested in the
motion for a temporary injunction as compared with
that sought in the complaint. Finally, the court dis-
cussed with counsel scheduling another hearing to
address the merits of the plaintiff’s complaint. It is clear,
therefore, that the plaintiff had no warning or notice
that his entire complaint, rather than this motion for
a temporary injunction, was subject to dismissal by
the court.

We acknowledge that the trial court certainly could
have sua sponte raised the issue of mootness regarding
the plaintiff’s complaint rather than considering only
the motion for a temporary injunction. As this court
has stated, ‘‘[t]he subject matter jurisdiction require-
ment may not be waived by any party, and also may
be raised by a party, or by the court sua sponte, at any
stage of the proceedings . . . .’’ (Internal quotation
marks omitted.) Cameron v. Santiago, supra, 223 Conn.
App. 845; see also Stafford v. Commissioner of Correc-
tion, 207 Conn. App. 85, 94, 261 A.3d 791 (2021). Never-
theless, ‘‘a court must still comply with the require-
ments of due process and provide the parties with
notice that the issue is being raised and a meaningful
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Berglass v. Dworkin

opportunity to be heard thereon.’’ Cameron v. Santiago,
supra, 846.
In the present matter, the court expressly informed
the parties, in no uncertain terms, that it would decide
only whether the plaintiff’s motion for a temporary
injunction was moot and that matters pertaining to the
complaint would be determined at a later date. For
example, at the conclusion of the November 17, 2022
hearing, the court twice told the parties that, following
its ruling on the motion to dismiss the motion for a
temporary injunction, the parties would receive notice
of a subsequent hearing to consider the merits of the
complaint. Thus, contrary to the defendants’ appellate
argument, the plaintiff lacked notice that his entire com-
plaint was subject to dismissal as moot. Accordingly,
we conclude that it was improper for the court, sua
sponte, to dismiss the plaintiff’s complaint, and this
action cannot stand. See, e.g., Pritchard v. Pritchard,
supra, 103 Conn. App. 288.
As a secondary matter, the plaintiff also claims that
the court made ‘‘critical factual findings without any
support in the record . . . .’’ Specifically, he asserts
that the court improperly found that it was impractical
to anchor the pool, anchoring would not prevent harm
such as erosion, flooding, and potential damage to prop-
erty, the anchors might also be dislodged in the event
of a storm, anchoring the pool could cause damage to
the seawall, which would lead to a greater threat of
flooding and erosion, and reorientation of the pool
would require the destruction of the pool and thus be
impractical. The court concluded that ‘‘an order to
anchor or reorient the pool would not offer practical
relief.’’ The plaintiff maintains that the court did not
hear any evidence to support these findings and, in the
absence of such evidence, these findings are improper.
We agree.
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Our Supreme Court has stated that when issues of
fact are necessary to the determination of the court’s
jurisdiction, due process requires that a trial-like hear-
ing be held in which the parties are provided with an
opportunity to present evidence and to cross-examine
adverse witnesses. See Conboy v. State, 292 Conn. 642,
652–53, 974 A.2d 669 (2009); see also Ruisi v. O’Sulli-
van, 132 Conn. App. 1, 5, 30 A.3d 14 (2011); Oxford
House at Yale v. Gilligan, 125 Conn. App. 464, 473, 10
A.3d 52 (2010). Such a proceeding did not occur. In
the absence of a hearing and the presentation of any
evidence, the court’s findings regarding the anchoring
of the pool to the seawall and reorientation of the pool
are clearly erroneous. See De Almeida-Kennedy v. Ken-
nedy, 207 Conn. App. 244, 253 n.8, 262 A.3d 872 (2021);
see also Goshen Mortgage, LLC v. Androulidakis, 205
Conn. App. 15, 34, 257 A.3d 360, cert. denied, 338 Conn.
913, 259 A.3d 653 (2021); see generally Nassra v. Nassra,
180 Conn. App. 421, 430, 183 A.3d 1198 (2018) (court’s
determination is clearly erroneous when record con-
tains no evidence to support it or reviewing court is
left with definite and firm conviction that mistake has
been made); Success, Inc. v. Curcio, 160 Conn. App.
153, 162, 124 A.3d 563 (same), cert. denied, 319 Conn.
952, 125 A.3d 531 (2015). Accordingly, we conclude that
the court’s findings are clearly erroneous in the absence
of any evidentiary basis and, therefore, are vacated.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.