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Town of Voluntown v. Rytman

Court of Appeals of Connecticut

April 17, 1990

TOWN OF VOLUNTOWN
v.
Julius RYTMAN et al.

Argued Nov. 9, 1989.

Donald R. Beebe, Norwich, for appellant (named defendant).

Richard J. Duda, Jewett City, with whom, on the brief, was W. Bradford Goodwin, Ashford, for appellee (plaintiff).

Ben M. Krowicki, Hartford, for appellee (defendant Connecticut Nat. Bank).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

Page 337

[21 Conn.App. 276] DALY, Judge.

The plaintiff town of Voluntown instituted this action pursuant to General Statutes § 12-181 against the named defendant, Julius Rytman, [1] for the foreclosure of municipal tax liens owed on a poultry farm for the tax lists 1984 through 1986. The defendant appeals from the trial court's judgment ordering a foreclosure by sale of the entire property following the denial of the defendant's motion to order a sale of a portion of the property. On appeal, the defendant claims that the trial court erred (1) in denying his motion to order a sale of a portion of the property, (2) in refusing to hear evidence concerning the apportionment of the property, (3) in denying his two motions to set aside the default for failure to disclose a defense, (4) in not considering evidence relating to the value of the premises as an egg production facility, and (5) in denying his motion for a stay of the proceedings. We find no error.

The relevant procedural history is as follows. In February, 1988, the plaintiff began a strict foreclosure action against Rytman, the owner of the premises, and a number of encumbrancers. The premises, known as [21 Conn.App. 277] the Jalkanen egg farm, consists of a 64.67 acre [2] tract that is traversed by a highway. On one side of the highway is the defendant's residence located on 1.74 acres. On the other side of the highway is the egg farm containing several buildings (egg production facility), all of which are located on 62.93 acres.

In May, 1988, the defendant filed a motion to stay the present foreclosure action until a pending foreclosure action that had been filed by the Connecticut National Bank (CNB), the next succeeding encumbrancer, was resolved. The defendant claimed that if he was successful in that proceeding, he could pay the municipal tax liens owed to the plaintiff. On June 20, 1988, the court denied the motion to stay and granted the plaintiff's motion for default for failure to plead and disclose a defense.

On June 20, 1988, the plaintiff offered the expert testimony of its tax assessor who testified that the present market value of the property was $452,800, even though the assessed value was $1,680,000. The court was not satisfied with this evidence and continued the matter for further evidence of value. On June 23 and June 30, 1988, the defendant filed motions to open the default for failure to disclose a defense. In the first motion, the defendant asserted two defenses: (1) He disputed the amount of the tax owed to the town; and (2) he claimed that the town did not come into this equity proceeding with clean hands because of the difference between the assessed value and the market value of the premises. The second motion asserted that the plaintiff had committed deceptive trade practices [21 Conn.App. 278] in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The court denied these motions on November 7.

On December 16, 1988, the defendant made an oral motion for foreclosure by sale. A hearing was held and both sides presented expert testimony on the value of the premises. The court found that the debt owed the plaintiff was $113,541.90 and continued the matter to December 21 so that the defendant could present an additional expert witness on value. On that date, the defendant filed a motion for foreclosure by sale of a portion of the premises. The defendant sought to have sold the 1.74 acre lot and residence, and a building lot across the street. The matter was continued to January 9, 1989, when the court heard argument on the defendant's motion for foreclosure by sale of a portion of the premises and motion to present additional evidence regarding the feasibility of apportioning the property that was filed December

Page 338

23. The court denied the two motions and instead ordered foreclosure by sale of the whole tract. In addition, the court found that the value of the property was $800,000, [3] appointed a committee and three appraisers; see General Statutes § 49-25; and ordered that the sale be made on June 10, 1989, at 12 noon. The defendant brought this appeal.

I

The defendant first claims that the trial court erred in denying his motion for a foreclosure by sale of a portion of the property. Specifically, the defendant asserts that the trial court erred in concluding that it did not have authority to grant this type of foreclosure. We do not agree.

General Statutes § 12-181 permits the trial court to order the sale of real estate to satisfy the foreclosure [21 Conn.App. 279] of municipal tax liens. See also General Statutes § 49-24. The procedure for the foreclosure of municipal tax liens, like all other liens is governed by General Statutes § 49-25. Cf. General Statutes §§ 12-182 through 12-194 (procedure for summary foreclosure of municipal tax liens). Specifically, § 49-25 provides in pertinent part: "When the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall ... direct whether the property shall be sold as a whole or in parcels...." " 'The foreclosure of a mortgage by sale is not a matter of right, but rests in the discretion of the court.' " Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 184, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985). Similarly, the trial court, in its discretion, has the authority to allow a foreclosure of municipal tax liens by the sale in parcels of land rather than the entire tract. General Statutes § 49-25; see also New England Mortgage Realty Co. v. Rossini, 121 Conn. 214, 219, 183 A. 744 (1936). Although a trial court has the discretion to order a sale of a portion of premises, the court did not abuse its discretion in this case when it denied the defendant's motion.

In his motion, the defendant relied on New England Mortgage Realty Co. v. Rossini, supra, and General Statutes § 49-25. In the present case, the trial court determined that it did not have authority to grant the defendant's motion for foreclosure by sale of a portion of the premises because of the Supreme Court's holding in New Haven Bank v. Jackson, 119 Conn. 451, 177 A. 387 (1935). In New Haven Bank v. Jackson, supra, concerning a strict foreclosure proceeding, the defendants requested that the court apportion "so much of the property ... as would, upon foreclosure and appropriation, satisfy it, leaving the remainder subject only to their mortgage." Id., 453-54, 177 A. 387. In that case, the [21 Conn.App. 280] court concluded that apportionment was not proper and rendered judgment for the plaintiff. The court reasoned that if the defendant were allowed relief by apportionment, that relief "would be demanded in most foreclosure actions and ...


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