Opinion
No. CV08-5010715S
August 23, 2010
MEMORANDUM RE MOTION TO OPEN JUDGMENT (#102)
Before the court is the motion to open judgment (#102) filed by the defendant, Gery Berthold, on March 26, 2009. The defendant asks that the court open the default judgment rendered by the court, Scholl, J., in favor of the plaintiff, David C. Berthold, on October 20, 2008. The defendant argues that the judgment should be opened because it was obtained through fraud on the part of the plaintiff.
On October 2, 2008, the plaintiff filed this application to discharge a mechanic's lien on certain real property owned by the plaintiff in Naugatuck, Connecticut. The defendant had recorded said mechanic's lien in the Naugatuck Land Records on January 30, 2008. According to the marshal's return, on October 7, 2008, the marshal served the defendant with the application and associated documents by leaving a copy at what he asserted was the defendant's usual place of abode, 21 Marshall Hill Road, Naugatuck, Connecticut. The hearing on the application was set for October 20, 2008. When the defendant did not appear at the hearing, the court ordered the discharge of the mechanic's lien.
The defendant appeared in this action on March 25, 2009, more than five months after the judgment was rendered, and filed the present motion to open the next day. The plaintiff filed an objection (#103) on April 3, 2009. A hearing on the motion was held on May 21, 2010, after which the court ordered the parties to file briefs on the issue of whether the defendant's motion has been rendered moot by operation of General Statutes § 49-39. The defendant filed his brief (#105) on July 7, 2010, and the plaintiff filed his brief (#106) on July 19, 2010.
The court must first address the issue of whether the motion to open is moot. The doctrine of mootness implicates the court's subject matter jurisdiction and thus can be raised at any time. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997). A motion is moot if, under the circumstances, the court could not grant any practical relief to the movant if it ruled in the movant's favor. See Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 581-82, 953 A.2d 868 (2008). A motion that is moot must be dismissed without consideration on the merits. See id., 582.
Under § 49-39, a mechanic's lien automatically ceases to exist unless, within the applicable time period, both an action to foreclose such lien is commenced and a notice of lis pendens is appropriately recorded. H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn.App. 426, 429-30, 601 A.2d 1040 (1992). The applicable time period for purposes of this section is the later of (1) one year after the recording of the mechanic's lien or (2) sixty days after the final disposition of an appeal from a judgment discharging or reducing the amount of the mechanic's lien. See General Statutes § 49-39; see also General Statutes §§ 49-35a and 49-35c.
General Statutes § 49-39 provides in relevant part: "A mechanic's lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint, cross-complaint or counterclaim, and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded or within sixty days of any final disposition of an appeal taken in accordance with Section 49-35c, whichever is later. Each such lien, after the expiration of the one-year period or sixty-day period, as the case may be, without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law."
General Statutes § 49-35a provides in relevant part: "Whenever one or more mechanics' liens are placed upon any real estate . . . the owner of the real estate, if no action to foreclose the lien is then pending before any court, may make application . . . to the superior court for the judicial district in which the lien may be foreclosed under the provisions of Section 51-345, or to any judge thereof, that a hearing or hearings be held to determine whether the lien or liens should be discharged or reduced."
General statutes § 49-35c provides in relevant part: "(a) Any order entered as provided in subsection (b) of Section 49-35b [disposing of an application brought under § 49-35a] shall be deemed a final judgment for the purpose of appeal.
"(b) No appeal may be taken from the order except within seven days thereof . . ."
The defendant argues that the motion is not moot by reason of § 49-39 because, even if he failed to commence an action within one year of recording, sixty days have not yet passed from the final disposition of an appeal taken in this matter. Thus, the defendant concludes, his mechanic's lien is not necessarily extinguished and it would not be futile to give him the opportunity to litigate its validity.
The plaintiff counters by asserting that the sixty-day limitation period is inapplicable because no appeal was taken from the default judgment and the appeal period has since passed. The plaintiff further argues that the defendant has not commenced a foreclosure action within one year after recording the mechanic's lien. Therefore, the plaintiff concludes that, regardless of the court's ruling on the motion to open, the mechanic's lien has been extinguished by operation of § 49-39.
The defendant's mechanic's lien is not necessarily extinguished regardless of the court's ruling on the motion, even without determining whether he commenced the foreclosure action within one year of recording the lien certificate. That the defendant failed to take an appeal of the default judgment under § 49-35c is immaterial to whether the motion to open is moot, contrary to the plaintiff's suggestion. Cf. Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 188 Conn. 253, 258-59, 449 A.2d 162 (1982) (holding that expiration of appeal period in § 49-35c was irrelevant to court's authority to open judgment in a § 49-35a action). A judgment, when opened, is legally nullified. See Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703, 894 A.2d 259 (2006). The purpose and effect of opening a default judgment is to give a litigant the opportunity that the litigant did not previously have to present a meritorious defense to the action. Clapper v. Clapper, 3 Conn.App. 637, 638, 490 A.2d 1030 (1985). Therefore, if the court were to grant the motion to open, the default judgment in this action would be voided and the defendant given a fresh opportunity to litigate the merits of the plaintiff's claim. Once judgment was again rendered, the losing party would have a new opportunity to bring an appeal pursuant to § 49-35c. Then, per § 49-39, the defendant's mechanic's lien, if ultimately validated on appeal, would survive for sixty days thereafter. Accordingly, granting the defendant an opportunity to litigate the merits of the plaintiff's application would not be necessarily impractical. Therefore, the motion to open is not moot and the court has subject matter jurisdiction to hear it.
The second issue is whether the court has the authority to open the default judgment. Under Practice Book § 17-43, a default judgment "may be set aside within four months succeeding the date on which notice was sent . . ." See also General Statutes § 52-212. A court lacks authority to grant a motion to open that has been untimely filed. Loesch v. Peggy Willis Ballet Co. of the Conservatory of Classic Ballet, Inc., Superior Court, judicial district of Windham, Docket No. CV 07 5000975 (December 29, 2008, Riley, J.) ( 47 Conn. L. Rptr. 2). A review of the file reveals that notice of the default judgment was sent by the clerk on October 20, 2008, more than five months before the motion to open was filed. Moreover, the defendant concedes in his motion that the four-month period has elapsed.
The defendant contends, however, that the judgment is the product of fraud and therefore may be opened without regard to the four-month limitation period. Courts have the "common-law authority to open a judgment outside the terms of § 52-212 in circumstances in which there is fraud . . ." Flater v. Grace, 291 Conn. 410, 424, 969 A.2d 157 (2009).
The defendant argues that the plaintiff intentionally served process upon him at an address at which he had not lived for over five years, when he knew the defendant's current address. The defendant contends that the plaintiff did this with the intent not to notify him of the action and thus to obtain a judgment by default. The plaintiff denies any fraud on his part and asserts that he made a good faith effort to locate the defendant's current address, which was not listed on the lien certificate recorded in the Naugatuck Land Records.
In order to prove fraud, the defendant must show that "(1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment." (Internal quotation marks omitted.) CT Page 17005 Spilke v. Spilke, 116 Conn.App. 590, 595, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009). The evidence presented fails to establish the existence of fraud. The court is not persuaded that the plaintiff instructed the marshal to serve the defendant at 21 Marshall Hill Road knowing that the defendant actually lived elsewhere and with the intent to deceive the court.
In fact, there was no evidence that the plaintiff himself was involved in determining the proper address for service. The plaintiff's attorney, Kevin McSherry, testified at trial that the lien certificate listed the defendant's name as "Gery Berthold, d/b/a Brian Tile Co." above the signature line. Attorney McSherry also testified that service was made at 21 Marshall Hill Road because he discovered that it was the address for Brian Tile Co.
The court finds that it lacks the authority to open the default judgment because the plaintiff has failed to prove that the judgment was the product of fraud. Therefore, the motion to open judgment is denied.
It is so ordered this 20th day of August 2010.