Pachaug Marina & Campground Assn., Inc. v. Pease ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and 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 repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
PACHAUG MARINA AND CAMPGROUND
ASSOCIATION, INC. v. PATRICIA
E. PEASE ET AL.
(AC 35157)
DiPentima, C. J., and Lavine and Flynn, Js.
Argued February 10—officially released April 15, 2014
(Appeal from Superior Court, judicial district of New
London, Devine, J.)
William J. Nulsen, for the appellants (defendant
Anthony Russo et al.).
Gregory W. McCracken, with whom was Lauramarie
Sirois, for the appellee (plaintiff).
Opinion
PER CURIAM. The defendants Anthony Russo and
Lucia H. Russo1 appeal from the judgment of the trial
court denying their motion to open and correct the
judgment of strict foreclosure and to extend the sale
date. On appeal, the defendants claim that the court
improperly denied their motion because part of the lien
for unpaid assessments was extinguished by General
Statutes § 47-258 (e). We conclude that the trial court
did not abuse its discretion in denying the defendants’
motion. We therefore affirm the judgment of the trial
court.
The following facts and procedural history are neces-
sary for our resolution of this appeal. The plaintiff,
Pachaug Marina & Campground Association, Inc., is the
unit owners’ association2 of a common interest commu-
nity known as Pachaug Co-Operaitve Campground.3 On
December 5, 2011, the plaintiff commenced this action
against the defendants and sought to foreclose a statu-
tory lien created by § 47-258 (a).4 The subject property
of the plaintiff’s foreclosure action is located in Gris-
wold at 262 Shetucket Turnpike, Unit 44, together with
the corresponding docksite (unit). The plaintiff was
entitled to provide an assessment of common expenses
against all units, and it claimed that the defendants
had failed to make the required payment beginning in
February, 2007. At the time of the complaint, the plain-
tiff alleged that the defendants owed $8,530.26 and that
additional assessments accrued on a monthly basis. The
plaintiff sought, inter alia, a foreclosure of the lien,
immediate possession of the unit, attorney’s fees, costs,
interest, late charges, and the appointment of a receiver.
On February 9, 2012, pursuant to Practice Book § 13-
19, the plaintiff moved for a default against the defen-
dants for failing to disclose a defense. The plaintiff also
moved for a judgment of strict foreclosure. The court
granted the plaintiff’s motion for default on February
21, 2012. On February 22, 2012, the court rendered a
judgment of foreclosure by sale, with a sale date of July
21, 2012. At that time, the court found the defendants’
debt to be $10,246.45.
On July 5, 2012, the defendants moved to open the
judgment and to extend the sale date. They alleged that
they had substantial equity in the unit and that they
actively were marketing it for sale in the summer
months. On July 16, 2012, the court granted the defen-
dants’ motion, and set a new sale date of September
22, 2012. On August 31, 2012, the defendants filed a
second, nearly identical motion to open the judgment
and to extend the sale date. The court granted that
motion on September 17, 2012, and set the sale date
for October 20, 2012.
On September 27, 2012, the defendants filed a third
motion to open, seeking to correct the judgment and to
extend the sale date.5 For the first time, the defendants
claimed that the amount of the debt was incorrect.
Specifically, they argued that liens assessed in 2007,
2008 and 2009 would have expired before the action
had been instituted as a result of § 47-258 (e).6 The
court held a hearing and issued an order denying the
defendants’ motion. The court declined to open the
judgment to allow the defendants to raise defenses ‘‘that
should have been asserted prior to the entry of judg-
ment, and where no compelling reason [was] shown
for the defendants’ failure to do so. . . . It is also well
established that courts of equity will not relieve against
the operation of judgments rendered through the inat-
tention of the party claiming to be aggrieved.’’ (Citation
omitted.) The court also stated that it previously had
opened the judgment twice and the defendants had
not raised § 47-258 (e); moreover, the defendants had
acknowledged the debt on two separate occasions. This
appeal followed.
‘‘Whether to grant a motion to open rests in the discre-
tion of the trial court.’’ Rzayeva v. 75 Oxford Street,
LLC, 111 Conn. App. 77, 78, 957 A.2d 539 (2008). ‘‘In
reviewing claims that the trial court abused its discre-
tion, great weight is given to the trial court’s decision
and every reasonable presumption is given in favor of
its correctness. . . . We will reverse the trial court’s
ruling only if it could not reasonably conclude as it
did.’’ (Internal quotation marks omitted.) Langewisch
v. New England Residential Services, Inc., 113 Conn.
App. 290, 295, 966 A.2d 318 (2009).
‘‘[General Statutes §] 52–212 requires a party moving
for the opening of a judgment to make a two part show-
ing that: (1) a good defense existed at the time an
adverse judgment was rendered; and (2) the defense
was not at that time raised by reason of mistake, acci-
dent or other reasonable cause.’’ (Internal quotation
marks omitted.) Tsitaridis v. Tsitaridis, 100 Conn.
App. 115, 119, 916 A.2d 877 (2007); see also Berzins v.
Berzins, 105 Conn. App. 648, 651–52, 938 A.2d 1281,
cert. denied, 289 Conn. 932, 958 A.2d 156 (2008); Prac-
tice Book § 17-43. The failure to meet both prongs is
fatal to the motion to open. Dziedzic v. Pine Island
Marina, LLC, 143 Conn. App. 644, 652, 72 A.3d 406(2013).
Our Supreme Court ‘‘has consistently held that the
denial of a motion to open a default judgment should
not be held an abuse of discretion where the failure to
assert a defense was the result of the moving party’s
negligence.’’ Kaplan & Jellinghaus v. Newfield Yacht
Sales, Inc., 179 Conn. 290, 293, 426 A.2d 278 (1979); see
also Woodruff v. Riley, 78 Conn. App. 466, 471, 827 A.2d
743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003).
Additionally, we are mindful that ‘‘[b]ecause opening a
judgment is a matter of discretion, the trial court [is]
not required to open the judgment to consider a claim
not previously raised.’’ (Internal quotation marks omit-
ted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69,
94, 952 A.2d 1 (2008); JPMorgan Chase Bank, N.A. v.
Eldon, 144 Conn. App. 260, 273, 73 A.3d 757, cert.
denied, 310 Conn. 935, 79 A.3d 889 (2013).
The defendants’ claim on appeal withers in light of
this precedent. Moreover, they have failed to persuade
us that this case presents an exceptional circumstance
that would warrant a departure from well settled law.
The defendants’ two passing references to Connecticut
Savings Bank v. Obenauf, 59 Conn. App. 351, 355–57,
758 A.2d 363 (2000), do not persuade this court that
the trial court abused its discretion in denying the defen-
dants’ motion.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
1
The plaintiff also named Patricia E. Pease and John H. Pease (Pease
defendants) as defendants. On February 2, 2012, the court granted the plain-
tiff’s motion for default as a result of the failure of the Pease defendants
to file appearances. The Pease defendants are not parties to this appeal.
We therefore refer in this opinion to Anthony Russo and Lucia H. Russo as
the defendants.
2
See General Statutes §§ 47-243 and 47-244.
3
‘‘The Common Interest Ownership Act, General Statutes § 47–200 et seq.,
is a comprehensive legislative scheme that governs creation, organization
and management of all forms of common interest communities.’’ Stamford
Landing Condominium Assn., Inc. v. Lerman, 109 Conn. App. 261, 262
n.2, 951 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008); see
also Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm
Road, Milford, LLC, 294 Conn. 311, 312 n.1, 984 A.2d 676 (2009). Our Supreme
Court has explained that ‘‘[t]he act, which is largely modeled after the
Uniform Common Interest Ownership Act, was created in order to provide
unit owners and their associations with consumer protection rights, as
well as to afford developers, lenders and title insurers with flexibility and
certainty in establishing common interest communities.’’ Linden Condomin-
ium Assn., Inc. v. McKenna, 247 Conn. 575, 584, 726 A.2d 502 (1999).
4
General Statutes § 47-258 (a) provides in relevant part: ‘‘The association
has a statutory lien on a unit for any assessment attributable to that unit
or fines imposed against its unit owners. Unless the declaration otherwise
provides, reasonable attorneys’ fees and costs, other fees, charges, late
charges, fines and interest charged pursuant to subdivisions (10), (11) and
(12) of subsection (a) of section 47-244 . . . are enforceable in the same
manner as unpaid assessments under this section. If an assessment is payable
in installments, the full amount of the assessment is a lien from the time
the first installment thereof becomes due.’’
5
The plaintiff filed an objection to this motion.
6
General Statutes § 47-258 (e) provides in relevant part: ‘‘A lien for unpaid
assessments is extinguished unless proceedings to enforce the lien are
instituted within three years after the full amount of the assessments
becomes due . . . .’’ This subsection previously set forth a two year period
to bring a proceeding to enforce the lien.