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MERRITT MEDICAL CENTER OWNERS CORP., INC.
v. CHARLES D. GIANETTI ET AL.
MERRITT MEDICAL CENTER OWNERS CORP., INC.
v. CHARLES D. GIANETTI ET AL.
(AC 41566)
DiPentima, C. J., and Bright and Devlin, Js.
Syllabus
The plaintiff sought to foreclose liens for unpaid common charges pursuant
to statute (§ 47-258 (m)) against two medical office units owned by the
defendant G in a common interest community. The trial court granted
the plaintiff’s motions for summary judgment as to liability and rendered
judgments of foreclosure by sale, from which G appealed to this court.
Held that the trial court erred in rendering summary judgment in favor
of the plaintiff: although § 47-258 (m) (1) (C) required that the plaintiff’s
executive board either adopt a standard foreclosure policy or specifically
vote to authorize foreclosure, the plaintiff had no standard foreclosure
policy and the plaintiff’s executive board merely authorized sending the
matters to collection; moreover, because the foreclosure actions were
not commenced in compliance with § 47-258 (m), the court lacked juris-
diction over the actions.
Argued January 23—officially released May 5, 2020
Procedural History
Action, in each case, to foreclose a statutory lien for
unpaid common charges on a medical office unit owned
by the named defendant, and for other relief, brought
to the Superior Court in the judicial district of Fairfield,
where the court, Hon. Alfred J. Jennings, Jr., judge trial
referee, granted the plaintiff’s motions for summary
judgment as to liability in each case; thereafter, the
court, Truglia, J., granted the plaintiff’s motion for
foreclosure by sale in each case and rendered judg-
ments thereon; subsequently, the court, Hon. Alfred J.
Jennings, Jr., judge trial referee, denied the named
defendant’s motions for extension of time to file a
motion to reargue, and the named defendant filed a
joint appeal to this court. Reversed; judgments directed.
Charles D. Gianetti, self-represented, the appellant
(named defendant), filed a brief.
Juda J. Epstein, for the appellee (plaintiff).
Opinion
BRIGHT, J. In this joint appeal,1 the defendant
Charles D. Gianetti2 appeals from two judgments of
foreclosure by sale, each rendered in favor of the plain-
tiff, Merritt Medical Center Owners Corp., Inc., as to
the defendant’s two medical office units, which are
located in a common interest community organized
under the Common Interest Ownership Act (act), Gen-
eral Statutes § 47-200 et seq. The defendant claims in
relevant part that the trial court improperly granted the
plaintiff’s motions for summary judgment as to liability
after it erroneously concluded that the plaintiff was in
compliance with the mandates of General Statutes § 47-
258 (m) when it commenced these actions. We agree
and, accordingly, reverse the judgments of the trial
court.
The following procedural history is relevant to our
consideration of the defendant’s claim. The plaintiff
commenced separate actions to foreclose liens pursu-
ant to § 47-258 on the defendant’s two office units as
a result of outstanding common charges owed by the
defendant. In docket number CV-XX-XXXXXXX-S, the
plaintiff sought to foreclose a statutory lien it had placed
on the defendant’s office unit 304 (unit 304 case). The
plaintiff alleged in its complaint in the unit 304 case
that it had a statutory lien for the following: ‘‘A yearly
assessment for the year 2016 of $7878.24 with monthly
common charges of $656.52, the first installment due
January 1, 2016 and [the] defendant owes through
August 19, 2016, the sum of $2564.16 together with
interest, late fees, attorney fees and costs.’’
In docket number CV-XX-XXXXXXX-S, the plaintiff
sought to foreclose the lien it had placed on the defen-
dant’s office unit 305 (unit 305 case). The plaintiff
alleged in its complaint in the unit 305 case that it had
a statutory lien for the following: ‘‘A yearly assessment
for the year 2016 of $7598.04 with monthly common
charges of $633.17, the first installment due January 1,
2016, and [the] defendant owes through August 19, 2016
the sum of $2277.36 together with interest, late fees,
attorney fees and costs.’’
In each case, the defendant pleaded the following
special defense: ‘‘Payments made to [the] plaintiff, but
checks from August, 2016, and October, 2016, not
deposited. [The] [p]laintiff has not responded to multi-
ple requests to . . . state status of account.’’3
The plaintiff filed a motion for summary judgment
in each case, which the defendant opposed, arguing in
part that the plaintiff’s attempt to foreclose on his office
units did not comply with § 47-258 (m). At the end of
January, 2018, the court found that the plaintiff had
complied with § 47-258 (m), and it rendered summary
judgment as to liability in each case. On February 26,
2018, the court rendered judgments of foreclosure by
sale, setting a May 26, 2018 sale date for both units.
On March 5, 2018, the defendant filed a motion for an
extension of time within which to file a motion to rear-
gue the foreclosure judgments, which, on April 2, 2018,
the court denied. Despite some procedural abnormalit-
ies, which are not relevant to the issue on appeal, the
defendant, on April 17, 2018, timely filed the present
appeal from the judgments of the trial court.
The defendant claims that, in each of the foreclosure
cases, the court erred in determining that the plaintiff
had established, for purposes of summary judgment,
that it had complied with the mandates of § 47-258 (m)
when it instituted these actions against him, and that,
on this basis, the summary judgments must be reversed
and the cases remanded for dismissal for lack of juris-
diction. We agree.
‘‘The standard of review of a trial court’s decision
granting summary judgment is well established. Prac-
tice Book § 17-49 provides that summary judgment shall
be rendered forthwith if the pleadings, affidavits and
any other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. . . . Our
review of the trial court’s decision to grant the defen-
dant’s motion for summary judgment is plenary. . . .
On appeal, we must determine whether the legal conclu-
sions reached by the trial court are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision of the trial court.’’
(Citations omitted; internal quotation marks omitted.)
Lucenti v. Laviero, 327 Conn. 764, 772–73, 176 A.3d 1
(2018). Statutory interpretation also is a matter of law,
requiring plenary review. See, e.g., Linden Condomin-
ium Assn., Inc. v. McKenna, 247 Conn. 575, 583, 726
A.2d 502 (1999).
Section 47-258 (m) provides in relevant part: ‘‘(1) An
association may not commence an action to foreclose
a lien on a unit under this section unless: (A) The unit
owner, at the time the action is commenced, owes a
sum equal to at least two months of common expense
assessments based on the periodic budget last adopted
by the association pursuant to subsection (a) of section
47-257; (B) the association has made a demand for pay-
ment in a record and has simultaneously provided a
copy of such record to the holder of a security interest
described in subdivision (2) of subsection (b) of this
section; and (C) the executive board has either voted
to commence a foreclosure action specifically against
that unit or has adopted a standard policy that provides
for foreclosure against that unit . . . .’’ The defendant
claims that the plaintiff failed to comply with subdivi-
sion (1) (C) of § 47-258 (m) because its executive board
neither voted to commence a foreclosure action as to
unit 304 or unit 305, nor had it adopted a standard
policy providing for foreclosure.
The following additional procedural history is rele-
vant. In response to the defendant’s objections to the
plaintiff’s motions for summary judgment in which the
defendant raised the issue of noncompliance with § 47-
258 (m) (1) (C), the plaintiff submitted in each case an
additional affidavit from Frank C. Callahan, the prop-
erty manager of the plaintiff. In the affidavit in the unit
304 case, Callahan attested in relevant part that the
board of directors met on June 7, 2016, and that it
‘‘voted and passed a motion to send the property known
as [unit 304] . . . to collection.’’ In the unit 305 case,
the plaintiff submitted a virtually identical affidavit
regarding unit 305. A copy of the board minutes also
was provided to the court.
At the October 16, 2017 hearing on the plaintiff’s
motions for summary judgment, the defendant argued
that the foreclosure cases were not commenced in com-
pliance with the mandates of § 47-258 (m) because the
board did not vote to send these matters to foreclosure,
but only voted to send them to collection. The plaintiff’s
attorney then represented to the court that ‘‘the board
voted on June 7th [and that] a collection letter was sent
from our office on July 18th,’’ and counsel directed the
court to exhibit C of the plaintiff’s reply memorandum
to the defendant’s objection to the plaintiff’s motion
for summary judgment. Exhibit C is a letter from the
plaintiff’s counsel, Juda J. Epstein, advising the defen-
dant that Attorney Epstein was representing the plain-
tiff and explaining that the letter was ‘‘an attempt to
collect a debt’’ and that the defendant could avoid litiga-
tion by rendering payment through his office.
During oral argument before this court on January
23, 2020, the plaintiff’s attorney conceded that the plain-
tiff has not adopted a standard policy that provides for
foreclosure and agreed that the only question is whether
the board’s vote to send the matters to ‘‘collection’’ was
sufficient to meet the procedure set forth in § 47-258
(m) (1) (C) that requires that the board ‘‘voted to com-
mence a foreclosure action specifically against that
unit.’’4 We conclude that it was not sufficient and that
the trial court, therefore, lacked jurisdiction over the
foreclosure case.
‘‘The statutory language [of § 47-258 (m)] indicates
that the legislature intended the three conditions neces-
sary for commencing an action to foreclose a common
charges lien to be jurisdictional prerequisites. . . .
[Section] 47-258 (m) provides that ‘[a]n association may
not commence an action to foreclose a lien on a unit
owner under this section unless’ it satisfies certain pre-
scribed conditions. . . . The legislature could have
phrased the requirement that a board adopt a policy or
vote to commence proceedings as a limitation on a
court’s ability to grant relief. . . . Instead, it phrased
the requirement as a condition precedent to the com-
mencement of the action itself. Thus, the adoption of
a standard foreclosure policy is ‘a condition precedent
to any right of action. Until [a vote is taken or a proce-
dure is adopted] no such right exists.’ ’’ (Citation omit-
ted; emphasis omitted.) Neighborhood Assn., Inc. v.
Limberger, 321 Conn. 29, 48–49, 136 A.3d 581 (2016).
‘‘[T]he act’s condition precedent to commencing a
foreclosure action—that a board either votes to insti-
tute the particular action or to adopt a standard foreclo-
sure policy—is jurisdictional. Liens for delinquent com-
mon expense assessments on individual units within
an association are creatures of statute. . . . In addition
to creating the lien and authorizing its foreclosure, § 47-
258, contrary to the tenet that the priority of liens is
governed by the common law rule that first in time is
first in right . . . carves out an exception and grants
a priority to the lien for common expense assessments.
. . . Although strict foreclosure is a common-law pro-
cess . . . we conclude that the right to foreclose the
common charges lien is more properly characterized as
a statutory right of action.’’ (Citations omitted; internal
quotation marks omitted.) Id., 48.
Clearly, subdivision (1) (C) of § 47-258 (m) requires
that the executive board of an association, before invok-
ing § 47-258 (m) to foreclose a lien on a unit, either
vote to commence a foreclosure action specifically
against that unit or that it have a standard policy that
provides for foreclosure against that unit. See id., 46.
In the present case, the plaintiff has conceded that it
did not have a standard policy. A review of the record
reveals that it also did not vote to commence a foreclo-
sure action against the defendant’s office units. Rather,
it voted to send the matters to ‘‘collection.’’
The plaintiff contends that collection meant foreclo-
sure, but it is quite clear from reading the letter sent
by Attorney Epstein to the defendant that he was
attempting to collect the debt when he sent a letter on
behalf of the plaintiff, clearly demanding payment and
telling the defendant how to avoid litigation that would
expose the defendant to liability for ‘‘interest on the
amount owed, together with court costs, sheriff fees
and reasonable attorney’s fees as provided by law.’’
Attorney Epstein’s letter mentions neither foreclosure
nor the possibility that the defendant could lose owner-
ship of his units. Additionally, and perhaps more import-
antly, the terms foreclosure and collection are readily
distinguishable. A foreclosure is ‘‘[a] legal proceeding
to terminate a mortgagor’s interest in property . . . .’’
Black’s Law Dictionary (11th Ed. 2019) p. 789. ‘‘The
subject matter of a bill to foreclose, is the land mort-
gaged, not the debt.’’ Mix v. Hotchkiss, 14 Conn. 31, 39
(1840). A collection matter, on the other hand, is one
seeking to ‘‘receiv[e] payment of a debt, whether pay-
ment be voluntary or compelled by legal action or pro-
cess.’’ Ballentine’s Law Dictionary (3rd Ed. 1969) p. 216.
The plaintiff also contends that the association
clearly meant foreclosure because the ‘‘only means for
collecting a statutory condominium [assessment] is
through the foreclosure process.’’ We disagree. Pursu-
ant to § 47-258 (f), ‘‘[t]his section does not prohibit
actions against unit owners to recover sums for which
subsection (a) of this section creates a lien or prohibit
an association from taking a deed in lieu of foreclosure.’’
Additionally, § 47-258 (k) specifically provides that ‘‘[i]n
any action by the association to collect assessments or
to foreclose a lien for unpaid assessments, the court
may appoint a receiver of the unit owner pursuant to
section 52-504 to collect all sums alleged to be due from
that unit owner prior to or during the pendency of
the action. . . .’’ (Emphasis added.) The statute clearly
contemplates alternative remedies of collecting the
unpaid amounts owed by a unit owner or foreclosing
on the owner’s unit. Because § 47-258 (m) (1) (C)
requires that the executive board specifically authorize
foreclosure, an authorization to send the defendant ‘‘to
collection on units 304 and 305’’ is inadequate to comply
with the statute.
On the basis of the foregoing, we conclude that the
court erred in rendering summary judgment in favor of
the plaintiff. We further conclude that the court did not
have jurisdiction over these foreclosure actions
because they were not commenced in compliance with
§ 47-258 (m).
The judgments are reversed and the cases are
remanded with direction to render judgments of dis-
missal.
In this opinion the other judges concurred.
1
Practice Book § 61-7 (a) (1) provides in relevant part: ‘‘Separate cases
heard together and involving at least one common party may as of right be
appealed jointly, provided all the trial court docket numbers are shown on
the appeal form (JD-SC-033).’’ On the defendant’s appeal form, he specifically
lists docket numbers CV-XX-XXXXXXX-S and CV-XX-XXXXXXX-S.
2
Also named as defendants in the foreclosure actions were encumbrancers
Foster Young, Esq., Glenn Siglinger and Laura Siglinger. Those defendants
are not parties to this appeal. Accordingly, we refer to Gianetti as the
defendant.
3
General Statutes § 47-258 (h) provides: ‘‘The association on request made
in a record shall furnish to a unit owner a statement in recordable form
setting forth the amount of unpaid assessments against the unit. The state-
ment shall be furnished within ten business days after receipt of the request
and is binding on the association, the executive board and every unit owner.’’
4
The defendant failed to appear for argument, and we permitted the
plaintiff to argue his response to the defendant’s appeal.