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Deutsche Bank National Trust Co. v. Fritzell

Court of Appeals of Connecticut

November 6, 2018


v.
DAWN FRITZELL ET AL.

          Argued September 7, 2018

         Procedural History

         Action to foreclose a mortgage on certain of the defendant's real property, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Maronich, J., granted the plaintiff's motion for summary judgment as to liability; thereafter, the court, Ecker, J., granted the plaintiff's second motion for judgment of strict foreclosure and rendered judgment thereon; subsequently, the court, Ecker, J., denied the defendant's motion to open the judgment, and the defendant appealed to this court. Improper form of judgment; judgment directed.

          Clifford D. Fritzell, III, self-represented, the appellant (defendant).

          Victoria L. Forcella, with whom, on the brief, was S. Bruce Fair, for the appellee (plaintiff).

          DiPentima, C. J., and Alvord and Bear, Js.

          OPINION

          ALVORD, J.

         The defendant, Clifford D. Fritzell, III, [1]appeals from the trial court's denial of his motion to open the judgment of strict foreclosure rendered in favor of the plaintiff, Deutsche Bank National Trust Company.[2] On appeal, the defendant claims that the trial court (1) erroneously denied his motion to open (2) erred by failing to vacate its order setting the law days for February 17 and 18, 2015 (3) improperly placed the burden on him to demonstrate lack of notice of the plaintiff's motion for judgment of strict foreclosure and (4) erred by penalizing him for being a former attorney. The first two claims involve the defendant's central argument that, contrary to the conclusion of the trial court, notice of the plaintiff's motion for judgment of strict foreclosure and the court's judgment of foreclosure sent to the address the defendant had provided on his appearance form did not sufficiently notify him of the proceedings against him. We agree with the court that the defendant received the notice to which he was entitled, but conclude that because there was no practical relief available to the defendant, the court should have dismissed the motion to open instead of denying it.

         The following facts and procedural history are relevant to our resolution of the defendant's claims on appeal. In August, 2011, the plaintiff commenced the underlying action to foreclose a mortgage on certain real property located at 282 North High Street in East Haven. The plaintiff filed a motion for judgment of strict foreclosure on December 13, 2011, which was granted on January 3, 2012. According to the defendant, service of process and notice of the judgment were mistakenly sent to the address of the defendant's father, who shares the same name as the defendant. The defendant represents that he subsequently learned of the foreclosure action and judgment from his father. The defendant filed a motion to open the judgment on February 21, 2012. This motion was heard and granted on March 12, 2012.

         On March 12, 2012, the defendant filed an appearance with the court, providing his address as 131 Mulberry Point Road in Guilford. On March 26, the defendant filed a motion to dismiss the action, arguing that he was not served at his address. On April 10, the plaintiff filed an objection to the defendant's motion to dismiss, arguing, inter alia, that the defendant received actual notice. On April 11, the plaintiff filed a motion to cite in the defendant, stating that the defendant may not have been properly served. The court granted the motion to cite in the defendant on April 26, and the summons and complaint were served on the defendant at 131 Mulberry Point Road in Guilford. On April 30, the court denied the defendant's motion to dismiss.[3]

         On February 1, 2013, the plaintiff filed a motion for summary judgment as to liability, which was granted on April 22, 2013. On December 12, 2014, the plaintiff filed a second motion for judgment of strict foreclosure. On January 6, 2015, the court granted the plaintiff's motion and rendered a judgment of strict foreclosure, setting the law days for February 17 and 18, 2015. On February 19, 2015, because no party exercised its right to redemption, title to the property subject to the foreclosure vested in the plaintiff.

         Notice of both the filing of the plaintiff's motion for judgment of strict foreclosure and the court's judgment were sent to 131 Mulberry Point Road in Guilford, the address that the defendant had provided on the appearance form he filed with the clerk of court. The defendant represents, however, that he no longer lived at 131 Mulberry Point Road in Guilford. The defendant provided that, in August, 2013, he had moved to the property subject to the foreclosure, located at 282 North High Street in East Haven. He did not file a new appearance form reflecting this change of address.

         The defendant claims that he became aware of the judgment of strict foreclosure in March, 2015, through his wife, who ‘‘perus[ed] the case activity periodically.'' On April 7, the defendant filed a motion to open the judgment and extend the law days. On May 26, the trial court, Ecker, J., held a hearing on the defendant's motion to open the judgment. During the hearing, the defendant claimed that he did not receive notice of the plaintiff's motion for judgment of strict foreclosure or notice of the court's judgment of strict foreclosure. In addition, he argued that if he had received notice, he could have transferred the mortgage to his wife. The plaintiff argued that its pleadings, as certified in the certification page, and the court's notice were sent to the defendant's address of record with the court at the time. In response, the defendant argued that he had been sending the plaintiff correspondence from an address in Old Saybrook, and therefore, the plaintiff knew that the defendant was living ata different address than the address he provided on his appearance form.

         At the conclusion of the hearing, the court issued an oral ruling denying the defendant's motion. The court found that the defendant received the process he was due. It explained that, because the defendant filed an appearance with the court, providing his address as 131 Mulberry Point Road in Guilford, the plaintiff and the court were entitled to rely on it. At the hearing, when discussing that the defendant should have filed an updated appearance form indicating his new address, the court stated: ‘‘[Y]ou're a lawyer, you should know better.'' The court concluded that, because notices of the plaintiff's ...


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