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The Goodwin Estate Association, Inc. v. Starke

Court of Appeals of Connecticut

August 7, 2018

THE GOODWIN ESTATE ASSOCIATION, INC.
v.
DARYL L. STARKE ET AL.

          Argued May 14, 2018

         Action to foreclose a statutory lien for unpaid common charges and assessments against a certain condominium unit owned by the named defendant, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Robaina, J., granted the plaintiff's motion for summary judgment as to liability; thereafter, the court, Dubay, J., rendered judgment of foreclosure by sale; subsequently, the court, Wahla, J., denied the named defendant's motions to open the judgment and to dismiss; thereafter, the court, Wahla, J., granted the committee's motion for approval of the sale, deed, report, fees and expenses, and the named defendant appealed to this court; subsequently, the court, Wahla, J., issued an articulation of its decisions. Affirmed.

          Keith Yagaloff, for the appellant (named defendant).

          John J. Bowser, for the appellee (plaintiff).

          Lavine, Moll and Flynn, Js.

          OPINION

          FLYNN, J.

         The defendant Daryl L. Starke[1] appeals from a condominium foreclosure judgment in favor of the plaintiff, the Goodwin Estate Association, Inc., arising from the defendant's failure to pay common charges and assessments levied on his condominium unit. The defendant's sole reviewable claim on appeal stems from the trial court's denial of his motion to dismiss the action for lack of subject matter jurisdiction. The defendant claims that the trial court erred in denying his motion to dismiss because (1) the court improperly considered the equities and length of proceedings when deciding the motion, and (2) the plaintiff did not properly adopt its standard foreclosure policy in violation of statute and the plaintiff's declaration, thereby depriving the trial court of jurisdiction. We affirm the trial court's judgment.

         This appeal has been preceded by a lengthy procedural history, which began with the commencement of this foreclosure action in 2014, approximately four years ago. The foreclosure action arises out of a $16, 130.27 debt owed to the plaintiff condominium association for common charges and assessments. The foreclosure has been the subject of two motions to dismiss, two defendant's motions for reconsideration, three motions for articulation, four objections to summary judgment, and two appeals to this court. Against this backdrop, we lay out the following undisputed facts. The defendant purchased 84 Goodwin Circle, Hartford, a condominium within the Goodwin Estate, in 2009. Since August, 2014, the defendant has not paid his common charges and assessments. On October 20, 2014, the plaintiff initiated this foreclosure action against the defendant. On September 29, 2015, the plaintiff moved for summary judgment. The court granted the motion. On October 17, 2016, a foreclosure by sale was ordered for January 14, 2017. At that sale, Huntington National Bank, a junior lienholder and named defendant, was the winning bidder. The defendant moved to open the judgment and to dismiss the action on January 27 and March 22, 2017, respectively. After a hearing, the court denied both motions and approved the committee sale, all on April 26, 2017. This timely appeal from the denial of the motion to open, the denial of the motion to dismiss, and the approval of the committee sale fol-lowed.[2] Thereafter, the defendant filed a motion for articulation of the orders denying both motions. An articulation dated November 13, 2017, followed. Additional facts will be set forth as necessary.

         ‘‘A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the trial court's ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo. . . .

         ‘‘When a . . . court decides a jurisdictional question raised by a . . . motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.'' (Citation omitted; internal quotation marks omitted.) Avoletta v. State, 152 Conn.App. 177, 182-83, 98 A.3d 839, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014).

         I

         We first consider the defendant's claim that the trial court erred in denying his motion to dismiss because it improperly considered the equities and length of proceedings when deciding the motion. The court's November 13, 2017 articulation dealt, in one memorandum, with both the defendant's motion to open and his motion to dismiss. A motion to open might have equitable aspects. See Flater v. Grace, 291 Conn. 410, 417-18, 969 A.2d 157 (2009); GMAC Mortgage, LLC v. Ford, 178 Conn.App. 287, 295, 175 A.3d 582 (2017); Nelson v. Charlesworth, 82 Conn.App. 710, 712, 846 A.2d 923 (2004); Connecticut Savings Bank v. Obenauf, 59 Conn.App. 351, 352, 758 A.2d 363 (2000). The defendant focuses, however, solely on the motion to dismiss, expressing his argument in his principal brief as follows: ‘‘The trial court erred in deciding the motion to dismiss when it considered the equities involved; and the length of time the [plaintiff] had been deprived of its fees; the defendant's refusal to pay the said fees/dues. . . . By considering . . . factors [other than whether the plaintiff properly adopted its standard foreclosure policy], such as the equities of the parties and the length of time the plaintiff had been deprived of its fees, the trial court erred.'' After the plaintiff noted in its brief that the trial court's articulation pertained to both the defendant's motion to dismiss and his motion to open, the defendant argued in reply that, because the trial court considered the two motions to be duplicative, the trial court necessarily considered equitable factors in deciding the motion to dismiss. Although ordinarily ‘‘we do not review claims raised for the first time in a reply brief''; United Amusements & Vending Co. v. Sabia, 179 Conn.App. 555, 560 n.1, 180 A.3d 630 (2018); the defendant's reply brief added no new analysis on the matter.

         The defendant points to no authority for his argument in either his principal or reply briefs. Although he acknowledges that the trial court's articulation dealt with both his motion to dismiss and his motion to open, he ignores the applicability of equitable principles that may be considered in deciding a motion to open. The defendant, however, implicitly acknowledged the propriety of applying equity to his motion to open, because in his memorandum of law in support of that motion, he asked the court to consider equitable principles. He cannot now seriously claim injury on the basis of the court's consideration that he so openly invited. The defendant's briefs do not provide us with any analysis of this argument other than his conclusory ...


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