Farmers & Mechanics Savings Bank v. Sullivan

Callahan, J., with whom Covello, J., joins,

dissenting. The granting of relief pursuant to General Statutes § 49-15 lies within the sound discretion of the trial court.1 Here the trial court, in the exercise of its discretion, refused to open its judgment of strict foreclosure. The trial court exercised its discretion in this fashion only after it had determined that the younger Sullivans had failed to assert any ground to open the judgment that could not have been brought to its attention before judgment entered and the Wirtzes redeemed. Because, on this record, I feel that the court’s action was a reasonable exercise of its discretion, I cannot agree with the majority opinion.

The record reveals that the bank commenced this foreclosure proceeding on October 6,1987. On November 23,1987, the younger Sullivans were defaulted for failure to appear. On January 19,1988, the trial court granted the plaintiff’s motion for summary judgment and ordered a strict foreclosure. The trial court scheduled the law days for February 29 through March 4, 1988, in order to allow for the passage of the appeal period and to give the parties “a reasonable period of time to make any arrangements that are necessary.” On their law day of March 4, 1988, the Wirtzes redeemed. It was only after all this had transpired that the younger Sullivans appeared, on March 14,1988, for the first time and filed their motion to open the judgment.

Further, the transcript of the June 2, 1988 hearing on the Sullivans’ motions to open clearly reveals that *359the elder Sullivans’motion “was never heard or scheduled prior to the original law days. ” (Emphasis added.) The trial judge stated, “I waited for a call and nobody followed through to set up a date for a hearing on it; that’s my recollection.” The elder Sullivans’ attorney stated, “There was, as Your Honor recalls, an abortive attempt to schedule it before [the law days] had run, and an attorney [for the Wirtzes] was down here that day but it was never heard or scheduled prior to the original law days.” It was not until after the younger Sullivans had belatedly filed their motion to open the judgment after the law days had passed, that the court requested a “copy of the transcript with regard to the motion for summary judgment which was held on January 19th, 1988.” Although the record does not reflect why the elder Sullivans failed to schedule an earlier hearing, it does reflect that the Wirtzes “were always ready, willing and able to argue the motion.”

I

At the hearing before the trial court on June 2,1988, the Wirtzes objected to the younger Sullivans’ motion to open the judgment, asserting that: (1) they had paid the bank and had secured their own mortgage; (2) they had made improvements to the property; (3) the elder Sullivans should have pressed their motion to open prior to the passing of the law days; and (4) the younger Sul-livans had not filed their motion to open the judgment until after the law days had passed and after they had redeemed. In view of the Wirtzes’ objections, the trial court perceived a “laches problem” because the younger Sullivans failed to cite a single legitimate reason as to why they had not appeared or why the elder Sullivans’ “motion wasn’t pressed and heard before the law days.” The trial court stated, “That’s one of the big problems with the case. You see, Mr. Heagney [the *360younger Sullivans’ attorney] comes in here after everything has happened and that’s the major problem he has.”

“One who seeks equity must also do equity and expect that equity will be done for all.” LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983). “Because a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done. City Savings Bank v. Lawler, 163 Conn. 149, 155, 302 A.2d 252 (1972); Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966).” Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). “The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981); Reynolds v. Ramos, supra. “When we review the exercise of discretion by the trial court, every reasonable presumption will be given in favor of the correctness of its ruling.” Reynolds v. Ramos, supra, 320-21.

“It is a well-established principle that courts of equity will not relieve against the operation of judgments rendered through the negligence or inattention of the party claiming to be aggrieved . . . Jarvis v. Martin, 77 Conn. 19, 21, 58 A. 15 (1904); Norwich v. Lebanon, 193 Conn. 342, 349 n.6, 477 A.2d 115 (1984); Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982); Duncan v. Milford Savings Bank, 134 Conn. 395, 402, 58 A.2d 260 (1948). All of the facts set forth in the younger Sullivans’ motion to open the trial court’s judgment were available to them prior to the rendition of the judgment. Their arguments, on the basis of those facts, could have and should have been made to the court before it entered judgment. The unexplained' failure of the younger Sullivans to move *361to open the judgment of strict foreclosure in a timely fashion “is an insufficient ground upon which to open the judgment at a later date.” Hartford Federal Savings & Loan Assn. v. Stage Harbor Corporation, 181 Conn. 141, 144, 434 A.2d 341 (1980) (denial of motion to open the judgment of strict foreclosure).2 The theory underlying the rules governing the opening of judgments is the equitable principle that once a judgment is rendered it is to be considered final; see In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); 2 E. Stephenson, Conn. Civ. Proc. § 207, p. 863; and “should be left undisturbed by post-trial motions except for a good and compelling reason. 2 Restatement (Second), Judgments § 78, comment c.” Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). There is no such reason here.

II

The majority purports to find an abuse of discretion in the trial court’s refusal to open the judgment of strict foreclosure because it claims that the court ignored the “interests of the younger Sullivans and their creditors in receiving the fair market value of the property that a foreclosure by sale might have achieved.” This view, however, ignores pertinent portions of the trial court's memorandum of decision.

First, the “creditors” that the trial court purportedly ignored are the elder Sullivans. After the Wirtzes recorded the bond for deed in the land records, however, all subsequent encumbrancers, including the elder *362Sullivans, had notice of the Wirtzes’ contractual right to purchase the property for $116,000. Having recorded their bond for deed before the elder Sullivans’ mortgage, the Wirtzes’ contract claim had priority over the secured interest of the elder Sullivans. The trial court stated: “At the time [the elder Sullivans] granted the $60,000 mortgage to their son, they were well aware that Farmers & Mechanics Savings Bank had a mortgage for well over $70,000 and they were also well aware that their son had already contracted to sell the home to the [Wirtzes] for $116,000, thereby indicating equity of much less than $60,000.”

Further, contrary to the majority’s assertion, the trial court, in its memorandum of decision, recognized and considered the problems of ordering a strict foreclosure rather than a foreclosure by sale. The trial court determined, however, that if it ordered a foreclosure by sale the Wirtzes might lose their right to purchase this particular piece of property if they were not the highest bidder. The trial court stated: “The Wirtzes and the Sullivans entered into a contract to sell a home for a specific price as referenced in the bond for deed. There has been no evidence presented to indicate that this was not an [arm’s] length transaction. If the Wirtzes were prevented from buying that specific piece of property for the specific price agreed to, by an order of a sale foreclosure it would be apparent that the equitable interests of the Wirtzes would not be properly protected.”

The trial court also stated: “At first sight there is a discrepancy . . . between the price paid by the Wirtzes, $82,013.91 and the purchase price agreed to of $116,000. This [difference] is the amount that [the elder Sullivans] may have reasonably expected they had a right to when they gave a mortgage to [the younger Sullivans]. Pursuant to the judgment of strict fore*363closure, [the elder Sullivans] have lost none of the just rights they acquired in granting the mortgage to their son, due to the fact that they still have every right to recover the [$34,000 differential] by subrogating themselves to the rights of [the younger Sullivans] under the contract [the younger Sullivans] had with the Wirtzes to sell the house for $116,000.”

Although the contract action was not before the court as part of the foreclosure proceedings, the record reveals that the contractual rights of the respective parties impacted the trial court’s analysis of the equities. If the Wirtzes are obligated to pay the balance due on the contract price, as the trial court believed, the younger Sullivans are not barred from collecting the $34,000 difference between the contract price and the figure the Wirtzes had paid to redeem.

Although further litigation may be necessary to resolve this issue, neither the younger Sullivans nor the elder Sullivans have challenged this portion of the trial court’s analysis of the situation on appeal. Absent even an argument that the trial court’s reasoning was faulty and that the Sullivans could not recover the difference between the redemption figure and the contract price, I find it difficult to say that the trial court abused its discretion in ordering a strict foreclosure.3

In summary, the majority finds an abuse of the trial court’s discretion solely on the basis of the windfall the Wirtzes will supposedly receive because of the excess monetary equity in the property. It completely fails, *364however, to refer to the trial court’s analysis of the possible distribution of the contract price or to give deference to the court’s balancing of the other equities. “In reviewing this exercise of judicial discretion with such a heavy hand, the majority usurps the function of the trial court and fails to accord reasonable deference to its evaluation of the factors involved.” Picketts v. International Playtex, Inc., 215 Conn. 490, 517, 576 A.2d 518 (1990) (Shea, J., dissenting). Indeed, I find it remarkable that the majority ignores the trial court’s analysis and will allow the younger Sullivans, the breaching defendant in the contract action and the dilatory party here, to reap the benefit of any increase in the market value of the property.4

Ill

The majority acknowledges that “[g]ood cause for opening a foreclosure pursuant to § 49-15 . . . cannot rest entirely upon a showing that the original foreclosure judgment was erroneous. Otherwise that statute would serve merely as a device for extending the time to appeal from the judgment.” The majority then asserts that a mere allegation by the younger Sullivans that “they had ‘not the means to redeem’ ” was sufficient to allow them to open the judgment. This is hardly a revelation that previously could not have been brought to the attention of the trial court had the younger Sullivans acted with a reasonable, indeed any, degree of diligence.

The younger Sullivans do not explain why it took them nearly two months from the date of the judgment to decide that they could not afford to redeem on their law day. Nor do the younger Sullivans explain why they were unable to make an appearance in court or to file a motion, prior to the expiration of the law days, to *365inform the court that they were having difficulty in securing financing to redeem. By allowing the younger Sullivans to open the judgment belatedly, without any explanation as to why they did not appear, the majority allows the younger Sullivans to utilize § 49-15 “as a device for extending the time to appeal from the judgment,” a use to which it says § 49-15 should not be put.

I find it intolerable that the elder Sullivans, who were aware of the law days and inexplicably failed to have their motion heard prior thereto, are able to thwart the court’s judgment and extend the time to file motions and the appeal period indefinitely, not only for themselves, but also for a party who had been defaulted for failure to appear. The delay in hearing the elder Sul-livans’ motion was not caused by “delays incident to the legal process of appeal,” as the majority would have it, but rather by the indecisiveness and inattentiveness of the parties filing the motions.5 The majority’s sanctioning of such lackadaisical practices in foreclosure actions could wreak havoc upon the finality of judgments and the effectiveness of our system of real estate recording.

IV

“[A] motion to open is not a substitute for an appeal. A motion to open filed beyond the expiration of the appeal period will not preserve for appeal issues pertaining to the earlier final judgment. Governors Grove Condominium, Associates, Inc. v. Hill Development Corporation, 187 Conn. 509, 510 n.2, 446 A.2d 1082 *366(1982).” Crozier v. Zaboori, 14 Conn. App. 457, 462, 541 A.2d 531 (1988). The younger Sullivans could have properly extended their time to file an appeal from the judgment of strict foreclosure by filing a request for an extension of time pursuant to Practice Book § 4040, or by filing any of the motions designated in § 4009 within the appeal period. The younger Sullivans cannot, however, belatedly extend their own appeal period by attempting to piggyback another non-appealing party’s timely motion. Because their motion to open was filed more than twenty days after the judgment was entered, they are precluded from appealing the foreclosure judgment itself. Yanow v. Teal Industries, Inc., 196 Conn. 579, 582 n.3, 494 A.2d 573 (1985). While in the proper instance a motion to open a judgment may operate to extend the applicable appeal period, it will not “serve to revive rights which were lost before the motion was made.” Daland’s Application, 81 Conn. 249, 252, 70 A. 449 (1908).

Therefore, the trial court’s denial of the younger Sul-livans’ motion to open the judgment is the only claim properly before this court on appeal. Because I would affirm the trial court’s decision to deny the younger Sullivans’ motion to open, there is no need to address the remaining claims. There is nothing, therefore, to prevent giving effect to the judgment of strict foreclosure and the law days set by the trial court. Pursuant to that judgment, title should have vested in the Wirtzes, the redeeming party. This court should not disturb the finality of that judgment to accommodate the indifference of the defendants.6 Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 713; see also General Statutes § 49-15.

“[General Statutes] Sec. 49-15. opening of judgments of foreclosure. Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.” (Emphasis added.)

“ ‘Overcrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. . . . Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. . . ” Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 32-33, 474 A.2d 787 (1984), quoting In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983).

I do not “assume,” as the majority indicates in its footnote 9, that the Wirtzes would remain liable to pay the difference between the contract price and the sum they paid to redeem the property. In view of the trial court’s observation, however, I do not understand how, without that issue being resolved, the majority automatically balances the equities in favor of the younger Sullivans. As the moving party, the burden was on them to demonstrate that they would not receive the contract price. The contract cannot be ignored, in the absence of any showing that it was invalid, simply because it was in litigation.

The trial court stated: “And the reality as far as the owners are concerned is that they agreed to sell their property for $116,000 before they realized it was worth $180,000, at least according to the appraisal—$170,000.”

At the commencement of the hearing on the younger Sullivans’ motion to open on June 2, 1988, the court asked the attorney for the elder Sullivans, “And I take it, Mr. Harris, that you have abandoned your motion to reopen?” The attorney responded that while the elder Sullivans had not abandoned the motion, it was not on for June 2,1988, and he did not wish to have it heard. He stated, “I don’t know where we’re going to be going with the case. ” (Emphasis added.) It was only after the trial judge demanded that the elder Sullivans act upon their motion that they reluctantly acquiesced to a hearing on it.

The judgment stated, “that upon payment of these sums, interest and costs by any defendant, after all subsequent parties in interest have been foreclosed, the title to the premises shall vest absolutely in the defendant making such payment, subject to such unpaid encumbrances, if any, as precede the interest of the redeeming defendant.”