Opinion
No. CV04-0568887S
July 19, 2006
MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION TO SET ASIDE
On April 28, 2006, pursuant to Practice Book § 17-4, the plaintiffs filed a motion to set aside this court's decision filed on April 19, 2006. The plaintiffs move on the ground that the decision entered on April 19, 2006, was filed beyond the 120-day time limit from the completion date of the trial as prescribed in General Statutes § 51-183b.
The following facts are relevant to the adjudication of this matter. On July 28, 2005, this court heard the plaintiffs' appeal from an approval of a special use permit granted to the defendant, Meehan Group, LLC. (Meehan), by the defendant planning and zoning commission of the town of Stonington (commission). On November 15, 2005, this court corresponded with all parties and stated that it was unable to file its decision regarding the appeal by the 120-day limit, which fell on November 28, 2005. In this correspondence, the court requested a waiver of the 120-day limitation in rendering its judgment. In responsive letters, dated November 18, 2005, the commission and the plaintiffs each consented to the waiver. In particular, the plaintiffs' letter stated in relevant part: "With respect to your letter dated November 15, 2005, please accept this as my consent to your request." By letter dated November 30, 2005, Meehan, however, did not give a blanket waiver and, instead, offered a 30-day extension until December 26, 2005.
By letter dated December 21, 2005, this court corresponded with the parties and requested a waiver for additional time, until February 1, 2006, to render its decision. By letters dated December 23 and 28, 2005, respectively, the plaintiffs and the commission consented to the court's request for a waiver. Particularly, the plaintiffs' letter stated in relevant part: "I hereby agree to waive the 120 day filing requirement as requested in your letter of December 21, 2005." Meehan, by letter dated January 4, 2006, also consented to the court's request for a waiver.
On March 30, 2006, this court corresponded with the parties notifying them that the memorandum of decision had been completed and would be filed upon a receipt of a waiver from each party. This court requested a waiver of the 120-day requirement until April 10, 2006. By letters dated April 4 and 12, 2006, respectively, the commission and Meehan consented to this court's request for a waiver until April 10, 2006, to issue its completed decision. The plaintiffs, however, did not respond to the court's request.
On April 13, 2006, a conference call was held between this court and all the parties. During this conference call the plaintiffs' counsel indicated that he was not authorized to provide any further waiver. On April 17, 2006, this court received a letter from Meehan setting forth case law concerning waivers and urging this court to issue its decision. On April 19, 2006, this court filed its decision. Subsequently, the plaintiffs sent a letter dated April 20, 2006, to the court responding to Meehan's letter, setting forth case law and objecting to the court issuing its opinion in this matter.
By affidavit dated April 28, 2006, the plaintiffs' counsel avers in pertinent part: "During the telephone call, I stated to the Court and all counsel of record that I was not authorized to provide such a waiver and would not provide one." This court, however, recollects the telephone conversation differently. This court does not recollect the plaintiffs' counsel indicating that he would not provide a waiver, only that his client would not authorize one at that time. Counsel for the commission stated during oral argument that he did not remember plaintiffs' counsel stating he would not provide a waiver and counsel for Meehan stated he could not remember either way. This court was left with the impression that a waiver might be forthcoming.
This court also notes that no objection to a late filing was stated during the telephone conference call, and plaintiffs' counsel conceded this at oral argument. This court first became aware of the plaintiffs' objection in a letter from plaintiffs' counsel to the court dated April 20, 2006 — one day after the court's decision was filed.
General Statutes § 51-183b provides: "Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section."
"Waiver of this statute may be made by express consent or consent may be implied." Matthews v. Nagy Bros. Construction Co., 88 Conn.App. 787, 790 (2005). "It is generally recognized that, if a person in possession of any right waives that right, he will be precluded thereafter from asserting it or from claiming anything by reason of it. That is, once a right is waived it is gone forever, and it cannot be reclaimed or recaptured, and the waiver cannot be retracted, recalled, or expunged, even in absence of any consideration therefore or of any change of position by the party in whose favor the waiver operates . . . [O]nce a known right is waived, the waiver cannot be withdrawn even if subsequent events prove the right waived to have been more valuable than had been anticipated . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 791.
In the present case, the plaintiffs, on November 18, 2005, expressly consented, without limitation, to a waiver of the 120-day time limit. On December 23, 2005, the plaintiffs again consented without limitation, to a waiver of the 120-day time limit. The plaintiffs argue, however, that theft waiver of November 18, cannot be construed as a blanket waiver because the court did not see their letter as a request for a blanket waiver as demonstrated by the subsequent request for a waiver until February 1, 2006. The defendants argue that it is of no moment that the court believed or requested an additional waiver on December 21, 2005; the real issue is whether the court initially requested a blanket waiver and whether the plaintiffs provided one. The court agrees with the defendants and finds that the plaintiffs voluntarily waived their rights to the provisions of § 51-183b.
At oral argument, the plaintiffs argued vigorously that Waterman v. United Carribean, Inc., 215 Conn. 688 (1990), is controlling of the present case. In Waterman, the trial court, acknowledging that it had not rendered a decision within the 120-day limit prescribed by § 51-183b, asked the parties to consent to an extension of time to render its judgment. The plaintiff agreed, but the defendants refused to consent to a waiver. The court, soon after, rendered an abbreviated decision partly in favor of the defendants. The defendants thereafter attempted to consent to the late rendering of the judgment. The trial court, however, set aside its judgment finding that the defendants had not consented to a waiver. On appeal, our Supreme Court held that "the defendants' initial refusal to consent to a late judgment deprived the court of personal jurisdiction over them. 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." Id., 694.
The facts of Waterman, however, are distinguishable from the facts of the present case. In the present case, the plaintiffs unconditionally consented to a waiver. As such, this court finds that Waterman is not controlling; the facts of this case are more analogous to the facts set forth in Matthews v. Nagy Bros. Construction Co., supra, 88 Conn.App. 787 (2005). In Matthews, the parties unconditionally waived the 120-day time limit for the court to render a decision. Approximately two years later, the court rendered its decision. During the interim, the plaintiff tried to revoke her waiver and moved for a mistrial. The Appellate Court, however, stated that "once a right is waived, it cannot be regained." Id., 791. The Appellate Court further found that "the plaintiff waived the right to receive judgment within the statutorily prescribed time . . . Additionally, she made a blanket waiver, not a conditional one allowing merely for an extension of a specified amount of time. Section 51-183b was created to discourage long delays in the rendering of judgments, but the legislature also provided that the parties could waive their rights to a speedy judgment. We can find no reason to ignore the rule that rights once waived cannot be regained by revoking the waiver." (Internal quotation marks omitted.) Id., 792-93.
In the present case, as in Matthews, the plaintiffs provided the court with an unconditional waiver. Once this unconditional waiver was given, the plaintiffs' rights pursuant to § 51-183b were relinquished forever, "even if subsequent events prove the right waived to have been more valuable than had been anticipated . . ." Matthews v. Nagy Bros. Construction Co., supra, 88 Conn.App. 791. Therefore, the plaintiffs' initial expressed waiver stands and cannot now be revoked.
Additionally, this court has determined that the plaintiffs consented impliedly to the waiver of the 120-day time limit because the plaintiffs did not object to the passage of the February 1, 2006 time limit.
"[The appellate courts] have characterized a late judgment as voidable rather than as void . . . and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties . . .
"These implied consent cases establish that an unwarranted delay in the issuance of a judgment does not automatically deprive the court of personal jurisdiction . . . Such consent may be implied from the conduct of the parties or their attorneys, in proceeding without objection with the trial or argument of the case, in remaining silent until the judgment has been rendered or in failing to object seasonably after the filing of the decision." (Citations omitted; emphasis added; internal quotation marks omitted.) Rowe v. Goulet, 89 Conn.App. 836, 844-45 (2005).
In Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830 (2002), the plaintiff appealed the trial court's judgment in favor of the defendants, in part, on the ground that the trial court rendered its decision beyond the 120-day limit required in § 51-183b. Simultaneous briefs were filed by the parties; however, an unsolicited brief by the defendant was filed without objection from the plaintiff. The trial court issued its opinion within 120 days from the date the unsolicited brief was filed, but the opinion was issued beyond 120 days from the date the parties filed their simultaneous briefs. The Appellate Court stated that the plaintiff "not only failed to object to the filing of the unsolicited brief, but also failed to object when the court had not rendered a decision 120 days after the simultaneous briefs were due . . . Rather, it appears that [the plaintiff] waited for the court's decision. When it received an unfavorable decision, [the plaintiff] filed a motion to set aside the judgment. By failing to raise a seasonable objection to the unsolicited brief or to the passage of 120 days from [the date the simultaneous briefs were filed], prior to the time the court rendered its judgment, [the plaintiff] by implication waived the time provision of § 51-183b." Id., 836-37. The court, therefore, upheld the trial court's judgment.
In D'Amnico v. Board of Alderman, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144154 (October 16, 2003, Doherty, J.) ( 35 Conn. L. Rptr. 627), the parties provided the trial court with a 90-day extension to render its judgment after a trial. The court, however, filed its opinion beyond the 90-day extension. No objections were made regarding the late filing of the judgment until approximately a month later when the defendant moved to set aside the judgment. Although the court noted that it had no reason to believe that upon the filing of its decision one party or the other would object, the court stated that: "A seasonable objection under the circumstances . . . 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 [§]51-183b . . ." Id., 628.
Although the plaintiffs correctly point out there is no clear duty to file an objection prior to the issuance of a late filed decision; Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 538 (1972), the above cited cases do provide support for the proposition that under certain circumstances an objection not filed before the issuance of a late judgment may render an objection after the judgment unseasonable. The present case, this court finds, is such a case. The plaintiffs were aware of the court's self-imposed deadline of February 1, 2006, to render its decision. Yet, that date came to pass without objection. Not until two and a half months later did the plaintiffs alert the court that a further waiver would not be authorized. Moreover, the plaintiffs did not submit any form of objection until after the court's judgment was filed. "[J]udicial economy dictates that the parties will be deemed to have consented to the delay if they fail to take timely and appropriate advantage of it." Gordon v. Feldman, 164 Conn. 554, 556-57 (1973). In the present case, the plaintiffs failed to take timely and appropriate advantage of the two and a half months from February 1, 2006 to April 20, 2006. The plaintiffs' inaction is deemed an implied waiver of their rights to the provisions of § 51-183b.
CONCLUSION
For the reasons stated above, the plaintiffs' motion to set aside the judgment is hereby denied.