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Town of Stratford v. LeBlanc

Court of Appeals of Connecticut

August 8, 2017

TOWN OF STRATFORD
v.
WAYNE N. LEBLANC ET AL.

          Argued March 8, 2017

          Steven A. Colarossi, for the appellant (named defendant).

          Richard C. Buturla, for the appellee (plaintiff).

          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 appearances 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.

         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 rendered judgments of foreclosure by sale; subsequently, the court, Hon. William B. Rush, judge trial referee, denied the named defendant's motions to open the judgments and rendered judgments of foreclosure by sale; thereafter, the court, Hon. William B. Rush, judge trial referee, denied the named defendant's motions for alteration or clarification, and the named defendant appealed to this court. Affirmed.

          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 relevant 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 Avenue in Stratford. The plaintiff also brought a municipal tax lien foreclosure action against the defendant, seeking 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 procedural 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 plaintiff filed motions for judgments of strict foreclosure, stating a tax arrearage of $43, 538.02 on the Sunset Avenue 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 process. 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. (Kramer'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 represent 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 ...


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