Town of Stratford v. Leblanc ( 2017 )

TOWN OF STRATFORD v. WAYNE N. LEBLANC ET AL.
(AC 39179)
Lavine, Alvord and Beach, Js.
Syllabus
The plaintiff town brought two actions seeking to foreclose municipal tax
liens on two parcels of real property owned by the defendant L. After
L was defaulted for failure to appear in both actions, the trial court
granted in part the town’s motions for judgments of strict foreclosure
and rendered judgments of foreclosure by sale. Thereafter, L filed an
appearance in both actions and motions to open the judgments, claiming,
inter alia, that he did not remember receiving service of process. The
trial court effectively denied the motions to open, but extended the sale
date, and L appealed to this court, claiming that the trial court improperly
failed to open the judgments on the merits. Specifically, L claimed, as
required by the statute (§ 52-212 [a]) governing the opening of a judgment
rendered on a default, both that a good defense existed at the time that
the judgments were rendered, and that he was prevented by mistake,
accident or other reasonable cause from presenting a defense because
his business records had been destroyed by a fire, which affected his
ability to gather records necessary to file appearances, and because
he was under the mistaken belief that the town had abandoned the
foreclosure actions. Held that the trial court did not abuse its discretion
in denying the motions to open, L having failed to provide the court
with any sufficient reason for not filing appearances until years after
the entry of the defaults; the court reasonably could have found that
L’s failure to appear in the actions until two months after the judgments
were rendered resulted from his own negligence, not as a result of
accident, mistake or other reasonable cause, as L did not file his appear-
ances until more than four years after a fire destroyed his business
records, the fire did not occur until approximately five months after
service and after the defaults had entered, and, thus, the court reasonably
could have concluded that even if L had been under the impression that
the town was not pursuing the foreclosure actions during a period of
time after the defaults had entered, L did not have reasonable cause to
fail to file appearances prior to the defaults; moreover, this court having
concluded that L failed to demonstrate that he was prevented by mistake,
accident or other reasonable cause from presenting a defense, it was
not necessary to address his claim that a good defense existed at the
time that the judgments were rendered, as a party seeking to open a
default judgment must make both required showings pursuant to § 52-
212 (a), and the failure to satisfy either requirement is fatal to a motion
to open.
Argued March 8—officially released August 8, 2017
Procedural History
Actions to foreclose municipal tax liens on certain
real property owned by the named defendant, and for
other relief, brought to the Superior Court in the judicial
district of Fairfield, where the named defendant et al.
were defaulted; thereafter, the court, Hon. Alfred J.
Jennings, judge trial referee, granted the plaintiff’s
motions for judgments of strict foreclosure and ren-
dered judgments of foreclosure by sale; subsequently,
the court, Hon. William B. Rush, judge trial referee,
denied the named defendant’s motions to open the judg-
ments and rendered judgments of foreclosure by sale;
thereafter, the court, Hon. William B. Rush, judge trial
referee, denied the named defendant’s motions for alter-
ation or clarification, and the named defendant
appealed to this court. Affirmed.
Steven A. Colarossi, for the appellant (named
defendant).
Richard C. Buturla, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, Wayne N. LeBlanc,1
appeals from the judgments of the trial court denying
his motions to open the judgments of foreclosure by
sale. He claims that the court erred in denying the relief
sought in his motions to open. We affirm the judgments
of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In July, 2011, the
plaintiff, the town of Stratford, commenced a municipal
tax lien foreclosure action against the defendant in an
effort to collect payment of outstanding real estate
taxes levied on the defendant’s property on Sunset Ave-
nue in Stratford. The plaintiff also brought a municipal
tax lien foreclosure action against the defendant, seek-
ing to collect outstanding real estate taxes and sewer
use charges for the defendant’s property on Old South
Avenue in Stratford. The actions have similar proce-
dural histories. In both actions, the marshal’s returns
of service, dated July 19, 2011, indicated that she had
served the defendant in hand.
On November 8, 2011, the plaintiff filed motions for
default for failure to appear against the defendant in
the foreclosure actions. The court granted the motions
on November 23, 2011. On November 19, 2015, the plain-
tiff filed motions for judgments of strict foreclosure,
stating a tax arrearage of $43,538.02 on the Sunset Ave-
nue property and $82,581.73 on the Old South Avenue
property. On November 25, 2015, Southport Secured
Lending Fund, LLC, another defendant in the actions;
see footnote 1 of this opinion; moved for judgments
of foreclosure by sale instead of judgments of strict
foreclosure. On December 7, 2015, the court rendered
judgments of foreclosure by sale with a sale date of
March 5, 2016.
In February, 2016, the defendant filed an appearance
in both actions. The defendant filed motions to open
the judgments in February, 2016. In the defendant’s
motions to open, he stated that, although he did not
dispute that the foreclosure actions were commenced
in 2011, he did not remember receiving service of pro-
cess. He further stated in his motions to open that
he operated a salvage yard under the name Kramer’s
Recycling Used Auto Parts & Auto Body, Inc. (Kram-
er’s), on two contiguous parcels in Stratford, one of
which is the Sunset Avenue property, and that a fire
occurred at Kramer’s some time after November 23,
2011. He further stated in his motions to open that an
escrow agreement had been entered into between him,
the plaintiff, and other parties, in October, 2013,
wherein the defendant would pay, from the insurance
proceeds received as a result of the fire, $40,000 to the
plaintiff for past taxes due. The escrow agreement that
was attached to the motions to open specified that
‘‘[t]he payments to each party are not intended to repre-
sent a complete satisfaction of debts owed to each
party . . . .’’ The defendant and his counsel both filed
affidavits in support of the motions to open in which
they attested to the occurrence of the fire, and the
defendant’s affidavit further specified that the fire
occurred in December, 2011.
On March 1, 2016, the court held a hearing on the
motions to open. The court stated at the hearing that
it denied the motions to open,2 but it extended the sale
date to May 7, 2016. This appeal followed.3
The defendant claims that the court erred in denying
the relief sought in his motions to open, which was the
opening of the judgments on the merits.4 He argues that
the first statutory requirement of General Statutes § 52-
212 (a)5 was satisfied because a good defense existed
at the time that the judgments were rendered. He further
contends that the second statutory requirement was
satisfied because he was prevented by ‘‘mistake, acci-
dent or other reasonable cause’’ from presenting a
defense due to (1) the fact that he had little time to
gather records necessary to file appearances before a
fire destroyed his business records and (2) a mistaken
belief that the plaintiff had abandoned the foreclosure
actions as a result of having accepted $40,000 and
engaging in ongoing discussions with the defendant
regarding payment terms.
‘‘Pursuant to . . . § 52-212 (a), a trial court may set
aside a default judgment within four months of the date
it was rendered provided that the aggrieved party shows
reasonable cause or that a good cause of action or
defense existed at the time the judgment was entered.
The aggrieved party must additionally demonstrate that
he was prevented by mistake, accident or other reason-
able cause from prosecuting or defending the original
action. General Statutes § 52-212 (a) . . . see also
Practice Book § 17-43 (a).
‘‘It is well established that the action of the trial court,
in either granting or denying a motion to open a default
judgment, lies within its sound discretion. A trial court’s
conclusions are not erroneous unless they violate law,
logic, or reason or are inconsistent with the subordinate
facts in the finding. . . . Once the trial court has
refused to open a judgment, the action of the court
will not be disturbed on appeal unless it has acted
unreasonably and in clear abuse of its discretion.’’ (Cita-
tion omitted; footnote omitted; internal quotation marks
omitted.) Priest v. Edmonds, 295 Conn. 132, 137, 989
A.2d 588 (2010).
We conclude that the court did not abuse its discre-
tion. At the March 1, 2016 hearing on the motions to
dismiss, the court extended the sale date and denied
the motions to open. In the absence of a record showing
the reasoning of the trial court, we presume that the
court applied the law correctly; we read the record
with an eye to support rather than to undermine the
judgments. See Blumenthal v. Kimber Mfg., Inc., 265
Conn. 1, 9, 826 A.2d 1088 (2003). The defendant did not
provide the trial court with any sufficient reason for
not filing appearances until years after the entry of the
defaults. The court reasonably could have found that
the defendant’s failure to appear in the actions until
approximately two months after the judgments were
rendered resulted from his own negligence; therefore,
he failed to satisfy the ‘‘accident, mistake or other rea-
sonable cause’’ prong of § 52-212. The defendant stated
in his affidavit in support of his motions to open that
the fire occurred in December, 2011. The defendant
was served with notices of the foreclosure actions on
July 19, 2011,6 but failed to appear. On November 8,
2011, the plaintiff filed its motions for default against
the defendant for failure to appear. On November 23,
2011, the court issued notices of default as to the defen-
dant for failure to appear. The defendant did not file
appearances in the actions until February, 2016.
Although the fire and the alleged resulting loss of busi-
ness records perhaps presented challenges in defending
the foreclosure actions, the defendant failed to appear
for more than four years after the fire, and the fire did
not occur until approximately five months after service
of process, and after the defaults had entered. The court
reasonably could have concluded that even if the defen-
dant may have been under the impression that the plain-
tiff was not pursuing the foreclosure actions during a
period of time after the defaults entered, he did not
have reasonable cause to fail to file appearances prior
to the defaults.
‘‘The burden of demonstrating reasonable cause for
the nonappearance is on the defaulted party, and [t]he
judgment should not ordinarily be opened if his failure
to appear . . . resulted from his own negligence.’’
(Internal quotation marks omitted.) People’s Bank v.
Horesco, 205 Conn. 319, 323, 533 A.2d 850 (1987). ‘‘A
court should not open a default judgment in cases where
the defendants admit they received actual notice and
simply chose to ignore the court’s authority. . . . Neg-
ligence of a party or his counsel is insufficient for pur-
poses of § 52-212 to set aside a default judgment.’’
(Citations omitted.) State v. Ritz Realty Corp., 63 Conn.
App. 544, 548–49, 776 A.2d 1195 (2001). Because the
failure to satisfy either prong of § 52-212 is fatal, and
the defendant failed to satisfy the reasonable cause
prong, we need not address the good defense prong.
See Weinstein & Wisser, P.C. v. Cornelius, 151 Conn.
App. 174, 180, 94 A.3d 700 (2014) (movant must satisfy
both prongs of § 52-212; failure to meet either prong is
fatal). Accordingly, we conclude that the court did not
abuse its discretion in denying the defendant’s motions
to open.
The judgments are affirmed and the cases are
remanded for the purpose of setting new sale dates.
In this opinion the other judges concurred.
1
Nicholas Kramer, Jr., Gerald DiFlorio, Fairfield County Bank, Southport
Secured Lending Fund, LLC, Estate and Heirs of Nicholas J. Kramer, Jr.,
were also named as defendants in the foreclosure actions. Because LeBlanc
filed the present appeal, we will refer to LeBlanc only as the defendant.
2
The case detail portion of the electronic record in these cases indicates
that the motions to open were granted and that a new sale date was ordered.
The court stated at the March 1, 2016 hearing on the motions to open that
it was not granting the relief sought in the motions to open, but was extending
the sale date to help the defendant to ‘‘work out all these other problems.’’
The court effectively denied the motions to open for the purpose of revisiting
the merits of the actions and, thus, we will treat the court’s ruling on the
motions as a denial.
3
The plaintiff argues that the defendant’s appeal is untimely because he
filed the appeal more than twenty days following the notice of the judgments
from which he appealed. See Practice Book § 63-1 (a) (‘‘an appeal must be
filed within twenty days of the date notice of the judgment or decision is
given’’). Because the plaintiff failed to file a motion to dismiss the appeal
as untimely within ten days of the defendant’s filing of the appeal, as required
by Practice Book § 66-8, the plaintiff waived its ability to seek dismissal of
the appeal as untimely. See Connecticut Commercial Lenders, LLC v.
Teague, 105 Conn. App. 806, 809, 940 A.2d 831 (2008).
4
The defendant also contends that the trial court lacked in rem jurisdiction
over the properties because the plaintiff was unable to prove the element
of its tax foreclosure actions in Practice Book § 10-70 (a) (4) as a result of
his $40,000 payment to the plaintiff in 2013. Section 10-70 (a) (4) provides
that a plaintiff seeking to foreclose a tax lien must allege and prove that
no portion of the tax assessment in question has been paid. In the present
case, insurance proceeds from the fire were placed in escrow for partial
payment of taxes while the cases were pending in the trial court.
‘‘If a court’s jurisdiction is based on its authority over the defendant’s
person, the action and judgment are denominated ‘in personam’ and can
impose a personal obligation on the defendant in favor of the plaintiff. If
jurisdiction is based on the court’s power over property within its territory,
the action is called ‘in rem’ or ‘quasi in rem.’ The effect of a judgment in
such a case is limited to the property that supports jurisdiction and does
not impose a personal liability on the property owner, since he is not before
the court.’’ Shaffer v. Heitner, 433 U.S. 186, 199, 97 S. Ct. 2569, 53 L. Ed.
2d 683 (1977). The defendant has not explained how the concept of in rem
jurisdiction pertains to these actions, nor has he provided us with any
authority, and we are not aware of any, stating that a trial court lacks
jurisdiction if a question arises over whether the plaintiff can satisfy all the
elements of a cause of action.
5
General Statutes § 52-212 (a) provides: ‘‘Any judgment rendered or decree
passed upon a default or nonsuit in the Superior Court may be set aside,
within four months following the date on which it was rendered or passed,
and the case reinstated on the docket, on such terms in respect to costs as
the court deems reasonable, upon the complaint or written motion of any
party or person prejudiced thereby, showing reasonable cause, or that a
good cause of action or defense in whole or in part existed at the time of
the rendition of the judgment or the passage of the decree, and that the
plaintiff or defendant was prevented by mistake, accident or other reason-
able cause from prosecuting the action or making the defense.’’
6
The defendant stated in his affidavit in support of his motions to open:
‘‘I do not recall being served with the summons and complaint which started
this action and the related tax foreclosure action. I understand that there
is a return of service filed in this case and I have no reason to doubt the
veracity of the state marshal who signed it.’’ The marshal’s returns of service
were dated July 19, 2011, and they indicated that the defendant had been
served in hand.