Opinion
No. CV 98 0144154
October 16, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO OPEN AND SET ASIDE JUDGMENT
The above matter is an administrative appeal from a decision of the respondent, Board of Aldermen, City of Waterbury (Board) by Dolores D'Amico (appellant) which involved the appeal by the appellant from a decision by the Board "denying and/or rejecting the application and approval" of a subdivision plan which had previously been submitted to and approved by the Plan Commission of the City of Waterbury.
The matter was tried to completion and the court reserved decision. The court did not enter judgment within 120 days, as required by Section 51-183b, C.G.S. The parties provided the court with a waiver of the provisions of the statute for an additional period of 90 days.
The parties' Consent To Extend Time To Render Decision, dated March 20, 2002, reads in relevant part, "The undersigned agree to extend the time period to render a decision for an additional ninety (90) days, from the date hereof."
The court subsequently rendered its decision. At the time of the rendition of the decision, neither party had filed any other pleadings addressed to the judgment and neither had filed an objection to the rendition of the judgment, despite the fact that it was filed considerably more than 90 days after the stipulation of the parties.
Notice of the rendition of the judgment, was mailed to the parties on July 17, 2003. Neither party filed a timely appeal therefrom.
On August 21, 2003, counsel for the Board filed the instant motion to open and set aside the judgment. The reason given for the relief sought in the motion was that the decision was rendered "well beyond the 120 days as set forth in [Sec. 51-183b, C.G.S.], and as extended by stipulation of the parties."
In cases where there has been no indication by any party that there is an objection to the untimely filing of a memorandum of decision, the courts have held that the waiver of the statute is implied by the lack of objection by the parties. A late judgment has been characterized by our Supreme Court as voidable rather than void, and the lateness of a judgment, if not seasonably objected to, has been permitted to be waived by the conduct or consent of the parties. That consent need not be express but may be implied Waterman v. United Caribbean, Inc., 215 Conn. 692. Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 97 (1996).
In the Waterman case, unlike the instant case, the defendants initially refused to consent to a late judgment which, according to our Supreme Court, deprived the trial court of personal jurisdiction over the parties. The defendants' prejudgment exercise of the authority conferred upon them by 51-183b to refuse to waive the delay had the same effect as a timely objection after judgment would have had. By their conduct they made the judgment, when rendered, not merely voidable but void. Although a voidable judgment may be cured, a void one may not. Id., p. 694.
In this case, as previously noted, there was an agreed-upon extension of time by the parties by an additional ninety days. The ninety days passed and there was no additional pleading by either party in the form of an objection to the filing of a memorandum of decision. It was only after the court had filed its memorandum of decision finding in favor of the plaintiff-appellant that the defendant objected to the filing by moving to have the judgment opened and set aside.
"[I]f both parties simultaneously expressly consent to a late judgment, either before the judgment is issued, or immediately thereafter, the judgment is valid and binding upon both parties, despite its lateness. Express consent, however, is not required. If a late judgment has been rendered and the parties fail to object seasonably, consent may be implied." Gordon v. Feldman, 164 Conn. 554, 556-57 (1973).
In Building Supply v. Lawrence Brunoli, Inc., supra, the party who made a post-judgment objection to the filing of a decision after a stipulated-to extension of time had passed, noted that in the waiver stipulated to in that case, the word "must" was purposefully included in the stipulation where it stated "that the time within which the court . . . must render its decision is extended by sixty (60) days . . ." (Emphasis added in original.) Building Supply v. Brunoli, supra, p. 100. The inference being that by using that language, the parties implicitly put the court on notice that they were objecting to any additional extensions of time.
That language was not used in the instant case. The court had no reason to believe that upon the eventual filing of the memorandum of decision, one party or the other would raise an objection — but only after having the benefit of the court's decision. It is that specific "Monday morning quarterback" approach to utilizing the provisions of Sec. 51-183b, C.G.S. which was the basis for finding implied waiver when, after the 120 days has passed, neither party objects until after reading the court's decision. The mere stipulation extending the time for the court to render its decision does not speak to the intention of the parties if the decision is not filed within that time.
A "seasonable objection" under the circumstances of this case would have been one made after the additional 90 days had passed without a decision, and before the court rendered its decision. An objection raised, for the first time, by the party against whom the judgment entered, after that party has the benefit of knowing the decision, is unseasonable, and the court is not required to vacate or set aside the judgment as untimely under Section 51-183b, C.G.S.
For the foregoing reasons, the court hereby denies the defendant's motion to open and set aside the judgment in this matter.
By the Court,
Joseph W. Doherty, Judge