Opinion
No. CV 92 299693 S
June 12, 2003
MEMORANDUM OF DECISION ON THE PLAINTIFF'S MOTION TO CORRECT
FACTS
The plaintiff, Samuel Milazzo, initiated this action against the defendants, Barry Schwartz and the Creative Food and Beverage Company in 1992, to obtain a judgment of strict foreclosure of two mortgages of $100,000 each that he held on the defendant's property. On June 14, 1995, the court, Tobin, J., found that judgment should enter in favor of Milazzo and continued the case for a hearing to determine the terms thereof. On December 11, 1995, the court, Tobin, J., entered judgment of strict foreclosure with January 9, 1996 as the first law day. A supplemental order regarding the interest owed by the defendant was entered on January 3, 1996. The defendants appealed, and on March 11, 1997, the Appellate Court affirmed the judgment of the trial court. Subsequently, the judgment of strict foreclosure was opened several times, the last of which was on October 20, 1997. On that date, the court, Tobin, J., reopened and modified the judgment and set a final law day of November 18, 1997. Title vested in the plaintiff on November 19, 1997.
On December 17, 1997, Milazzo filed a motion for a deficiency judgment against Schwartz, which motion was granted by the court, Mottolese, J., on August 9, 1999. In the order, the court stated, "the Court finds that the mortgaged property was not redeemed and that title to the said property vested in the plaintiff on Nov. 19, 1997. The Court further finds that on said date the plaintiff's debt was $309,206.11, that the subject property on said date had a value of (see Deficiency Judgment Calculations), and that therefore a deficiency judgment may enter for the plaintiff against the [defendant] Barry Schwartz, in the amount of $90,177.11." The document entitled Deficiency Judgment Calculations, which was apparently prepared by Milazzo's attorney and supported by an affidavit executed by him. The calculations listed the following:
Judgment debt as of 10/20/97 $290,634.18
Attorneys fees (on original judgment) 15,000.00
Costs (on original judgment) 1,150.00
Interest from day after judgment to date title vested in plaintiff (10/20/97-11/19/97) = 30 days @ 80.75 per day 2,421.93
$309,206.11
Less established value of property (one-half interest in name of B. Schwartz only) - (147,500.00)
$161,706.11
Less prior existing blanket mortgage in the amount of $160,000.00 (one-half interest) - (80,000.00)
$ 81,706.11
Less established value of property (full interest in the name of Barry Schwartz) - (41,000.00)
This figure should be $40,706.11, which when added to the figures listed below it, would result in a total of $90,177.11. Milazzo did not repeat this mathematical error in his affidavit of debt.
Interest from 12/19/97 through 8/9/99 @ $80.75 per day (598 days) 48,288.50
Additional attorneys fees as allowed by the Court: 457.50
Appraiser's fee (on deficiency hearing): 725.50
DEFICIENCY JUDGMENT: $ 90,177.11
Pending before the court is Milazzo's motion to correct a clerical error in the deficiency judgment filed on November 19, 2002. According to Milazzo, a clerical error was made in that half the value of the prior mortgage $80,000.00) was subtracted from the amount due to him, but the full amount of his mortgage should have instead been added "to reflect the actual net equity of the property in computing the Deficiency Judgment."
Schwartz has objected to the motion to correct. Schwartz does not dispute Milazzo's statement that the value of the mortgage should have been added instead of subtracted in calculating the deficiency judgment, but instead contends that the court lacks jurisdiction because Milazzo did not file the motion within four months of date of the judgment, as required by General Statutes § 52-212a. See also Practice Book § 17-4(a). He also argues that the deficiency judgment contains several other errors that were detrimental to him and that his previous counsel may have elected not to contest the errors because they were balanced out by the error Milazzo seeks to correct here. In the alternative, Schwartz argues that if the court opens the judgment, it should do so for all purposes and that he should be permitted to challenge it on various grounds.
Practice Book § 17-4(a) provides in pertinent part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent . . ."
DISCUSSION
"A trial court possesses the power to modify substantively its own judgment within four months succeeding the date on which it was rendered or passed." (Internal quotation marks omitted.) Cusano v. Burgundy Chevrolet, Inc., 55 Conn. App. 655, 659, 740 A.2d 447 (1999), cert. denied, 252 Conn. 942, 747 A.2d 519 (2000). Section § 52-212a, which governs motions to open civil judgments, provides in relevant part: "Unless otherwise provided by law . . . a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed . . ." Under Connecticut law, "the substantive provisions of § 52-212a are fully enforceable as a limitation on the authority of the trial court to grant relief from a judgment after the passage of four months. Thus construed, § 52-212a operates as a constraint, not on the trial court's jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it . . . [A] trial court judgment rendered after the expiration of an applicable statutory time limitation is not void for want of jurisdiction of the court to render it . . . [but] unless the party against whom it is rendered consents to its being entered or waives the objection [the judgment] is erroneous." (Citations omitted; internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999).
It should be noted that General Statues § 49-15 (a), which applies specifically to judgments of strict foreclosure, does not apply to the present motion. This statute provides: "Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by Section 52-212a, upon such terms as to costs as the court deems reasonable, but no such judgment shall be opened after the title has become absolute in any encumbrancer."
In this case, Milazzo is moving to open a deficiency judgment, not a judgment of strict foreclosure. "[T]he deficiency judgment procedure, although procedurally a part of the foreclosure action, serves a separate function of providing for recovery on the balance of the note which was not satisfied by the strict foreclosure . . . The proceedings on a motion for a deficiency judgment, therefore, do not implicate the integrity of the prior, final judgment of strict foreclosure." Federal Deposit Ins. Corp. v. Retirement Group, Inc., 31 Conn. App. 80, 86, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993) (motion to substitute plaintiff in deficiency judgment does not implicate § 49-15); see also Dyck O'Neal, Inc. v. Wynne, 56 Conn. App. 161, 164 n. 5, 742 A.2d 393 (1999) (motion to correct error in plaintiff's name in deficiency judgment not controlled by § 49-15). Moreover, deficiency judgments are governed by General Statutes § 49-14, which provides that a party to a mortgage foreclosure may file a motion for such a judgment "[a]t any time within thirty days after the time limited for redemption has expired." Thus, a party cannot file a motion for a deficiency judgment until the final law day has passed. If § 49-15 applied to deficiency judgments, such judgments would not be subject to being opened. It is submitted, therefore, that motions to open deficiency judgments are governed by § 52-212a, and not by § 49-15.
Additionally, even under § 49-15, in New Milford Savings Bank v. Jajer, 244 Conn. 251, 258, 708 A.2d 1378 (1998), the court opined, "as best we can determine, the legislature's purpose in enacting § 49-15 was not to preclude amendment to correct scrivener' s errors, but rather to set out an orderly framework for a mortgagee's exercise of the equity of redemption." The court noted that "En] either the text of § 49:15 nor the purpose that it was intended to serve requires us to construe the statute so broadly that it would preclude trial courts from exercising their equitable discretion to correct inadvertent omissions in mortgage foreclosure proceedings." Id., 260. Moreover, the Supreme Court noted that "[t]he law governing strict foreclosure lies at the crossroads between the equitable remedies provided by the judiciary and the statutory remedies provided by the legislature"; id., 256; and thus concluded that, "consistently with its authority to exercise equitable discretion in foreclosure proceedings, the trial court must be afforded the authority to open judgments on a case-by-case basis in order that complete justice maybe done." Id., 261.
"A court may [however] correct a clerical error at any time, even after the expiration of the four month period. A clerical error is a mistake or omission in a judgment which is not the result of the judicial function. Such a claimed error does not challenge the court's ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court." (Internal quotation marks omitted.) Cusano v. Burgundy Chevrolet, Inc., supra, 55 Conn. App. 659. "`A motion to correct [a] clerical [or scrivener's] error is one in which no change is sought in the judgment rendered by the court but only in an alleged improper recording of that judgment; its purpose is to make the record conform to what actually took place.' II E. Stephenson, Connecticut Civil Procedure (2d Ed. 1971) § 207(b), p. 853." Connecticut National Bank v. Gager, 66 Conn. App. 797, 800, 786 A.2d 501 (2001), cert. granted on other grounds, 259 Conn. 922, 792 A.2d 853 (2002).
In addition, "[m]otions for interpretation or clarification, although not specifically described in the rules of practice are, commonly considered by trial courts and are procedurally proper . . . There is no time restriction imposed on the filing of a motion for clarification." Avalonbay Communities v. Planning and Zoning Commission, 260 Conn. 232, 244, 796 A.2d 1164 (2002). "[T]he trial court's continuing jurisdiction to effectuate its prior judgments, either by summarily ordering compliance with a clear judgment or by interpreting an ambiguous judgment and entering orders to effectuate the judgment as interpreted, is grounded in its inherent powers, and is not limited to cases wherein . . ., the parties have agreed to continuing jurisdiction." Id., 246.
Consequently, the parties' positions regarding the motion to correct and § 52-212a are essentially reduced to the question whether the error at issue is "clerical" as described under our case law. The court concludes that the Appellate Court's decision in Federal National Mortgage Assn. v. Dicioccio, 51 Conn. App. 343, 721 A.2d 569 (1998), is on point and controlling. In this case, the Appellate Court ruled that the trial court erred in denying the plaintiff's motion for a supplemental judgment to correct a clerical error in a judgment of foreclosure by sale. The amount of the debt found by the trial court was premised on the plaintiff's affidavit of debt, which contained a clerical error in that "escrow advances for taxes in the amount of $5129.94 were subtracted from the debt rather than added to it." Id., 344. The plaintiff filed a motion for supplemental judgment after it discovered its error more than four months after the entry of the judgment. The trial court denied the motion on the ground that the motion was untimely. In reversing the denial and remanding the case, the Appellate Court explained, "[i]n the present case, the trial court, as a court of equity, had the authority to correct the clerical error to achieve an equitable result. To ignore the error would result in an injustice to the plaintiff because it is owed $10,259.88 more than the foreclosure judgment ordered. The motion for further supplemental judgment, therefore, should have been granted." Id. 345.
In the present case, the nature of the error is virtually identical to the one in Federal National Mortgage Assn. v. Dicioccio, supra, and on the basis of this precedent it would be error for the court to deny the plaintiff's motion to correct.
Indeed, the clerical nature of the error Milazzo seeks to remedy is what distinguishes it from the cases Schwartz relies on. See Hoey v. Investors' Mortgage Guaranty Co., 118 Conn. 226, 231, 171 A. 438 (1934). ("[e]quity will not, save in rare and extreme cases, relieve against a judgment rendered as the result of a mistake on the part of a party or his counsel, unless the mistake is unmixed with negligence or . . . unconnected with any negligence or inattention on the part of the [moving party] . . ." (internal quotation marks omitted)); Goldreyer v. Cronan, 76 Conn. 113, 117, 55 A. 594 (1903) (trial court erred in granting untimely motion to "correct" judgment to add interest thereto, because absence of interest was judicial mistake "in failing to include interest in the judgment as rendered" and not "a clerical one, in failing to include interest in the judgment as recorded." Id., 116).
In this case, as in Federal National Mortgage Assn. v. Dicioccio, supra, 51 Conn. App. 343, the plaintiff does not seek to alter the substance of the court's decision. Furthermore, Milazzo does not seek to submit additional evidence for the court to use in calculating the amount of the judgment. Rather, Milazzo seeks to correct a clerical error in the method used to calculate the value of the property, and thus in the amount of the judgment, using figures that were already before the court.
Consequently, the essence of the motion is to "make the record conform to what actually took place"; Connecticut National Bank v. Gager, supra, 66 Conn. App. 800; and not to alter the substance of the evidence presented to the court or the findings made by the court. That the plaintiff's attorney precipitated the error by providing the court with erroneous calculation is inconsequential under these circumstances because, as noted above, in Federal National Mortgage Assn. v. Dicioccio, the plaintiff was also responsible for the error. See also, Dyck O'Neal, Inc. v. Wynne, 56 Conn. 161, 164-65, 742 A.2d 393 (1999) (pursuant to General Statutes § 52-123, trial court had authority to grant plaintiff's motion to correct its name in a deficiency judgment action even though motion filed beyond limitation period of § 52-212a); Cusano v. Burgundy Chevrolet, Inc., supra, 55 Conn. App. 660 (trial court did not err in granting motion to open judgment filed outside limitation of § 52-212a because court clerk's entry of nonsuit was clerical error).
In other instances, the Supreme and Appellate Courts have allowed plaintiffs to open foreclosure and deficiency judgments to correct errors which, if left uncorrected, would result in defendants receiving an inequitable windfall. For example, in New Milford Savings Bank v. Jajer, supra, 244 Conn. 260, the Supreme Court held that the trial court did not err in granting the plaintiff's motion to open a foreclosure proceeding to correct an error in its description of the property. The court noted that, "the defendants have not alleged that the [plaintiff's] error caused them, in any way to change their position to their detriment . . . In these circumstances, if the defendants were to prevail on this issue, they would receive an unexpected and unjust windfall." Further, in Dyck O'Neal, Inc. v. Wynne, 56 Conn. 161, 164-65, 742 A.2d 393 (1999), the Appellate Court affirmed the trial court's decision to grant the plaintiff's motion to open a deficiency judgment to correct an error in the plaintiff's name. The court noted that the defendant did not contest the validity of the deficiency judgment and that her argument that the plaintiff should not be permitted to correct the error "would provide [the defendant] with a windfall as a result of a misnomer. Such a result is contrary to the equitable nature of a foreclosure." Id., 167.
The defendant insists that if the judgment is opened to correct this clerical error the judgment should be opened for all purposes so that the parties may be heard regarding other errors and issues pertaining to the entry of the deficiency judgment. While the court declines the defendant's invitation to open the judgment for all purposes, the court is concerned about the following. The parties essentially concede that in addition to the error at issue, there are other errors of a similar, clerical nature committed as part of the deficiency judgment calculation. More specifically, errors were made in the calculation of the interest that accumulated on the debt before and after the vesting of title. The court is disinclined to enter a final deficiency order knowing that even this order, based on the evidence found and relied on by the court, is still infected with computation errors.
For example, the file does not reflect the filing of an appraisal report on the value of the property at the time title vested in the plaintiff. However, the transcript of the deficiency judgment proceedings has not been provided, and therefore, it is unclear whether the parties stipulated to value or whether the court heard testimony about the value of the property. In any event, the record is clear that as part of these proceedings the court awarded $725 as an additional appraiser's fee and found that the deficiency judgment should be based on a calculation giving the defendant a $147,500 credit for the value of the property at the time of vesting. This court will not review or disturb these findings.
The interest prior to the vesting of title was not calculated using the correct dates and the interest after vesting did not reflect the reduced amount of the debt resulting from the vesting of title in the plaintiff. See generally, D. Caron, Connecticut Foreclosures, (3d Ed. 1997) § 9.0A1, pp. 269-72.
Consequently, the court will not review or alter the evidence relied on by the court in calculating the deficiency, but the court will rely on this evidence to determine the deficiency using the correct calculations. See generally, D. Caron, Connecticut Foreclosures, (3d Ed. 1997) § 9.0A1, pp. 269-72. These results are reflected in the "Proposed Deficiency Judgment Calculations" attached hereto. The parties have leave to be heard on these proposed calculations prior to the entry of the final order of deficiency. The case is continued to Monday, July 14, 2003 at 9:30 a.m. for this purpose. Any memoranda on this issue shall be filed no later than July 7, 2003.
So ordered this 12th day of June 2003.
STEVENS, J
PROPOSED
DEFICIENCY JUDGMENT CALCULATIONS
Date of judgment of strict foreclosure: 10/20/97 Date file vested: 11/19/97 Date of deficiency judgment: 8/9/99
A. Judgment debt plus interest as of 1/3/96 (n. 1) $250,666 00
B. Attorney fee awarded by Court on 2/11/95 15,000.00
C. Appraisal fee awarded by the Court on 12/11/95 1,150.00
D. Title Search fee awarded by the Court -0-
E. Other costs -0-
F. Per diem interest from 1/3/96 (n. 2) to the date of title vesting $ 43.83 X 685 = 30,023.55
Add A through F (subtotal of original debt) $296,839.55
G. Calculation of interest from date vesting to date of deficiency judgment (calculated on only the deficiency, i.e., the original debt less the established value of the property).
Calculation of interest:
1. Subtotal of original debt $296,839.55
2. Value of property at date of title vesting -147,500.00 1/2 interest to B. Schwartz)
3. Difference: $149,339.55
4. Rate of interest 8%
5. Per diem amount of interest ($ 149 399 x .08 ñ365: 32.73
6. Number of days from date of vesting 628 to date of deficiency judgment
7. Interest ($32.73 X 628) 20,554.44
H. Additional attorneys fees allowed by the Court on 8/9/99 457.50
I. Additional appraisal fees allowed by the Court on 8/9/99 725.00
J. Prior blanket mortgage not previously included 160,000.00
K. TOTAL DEBT $478,576.49
L. Less the value of the property as of the date title vested (1/2 interest of B. Schwartz) 147,500.00
M. Less value of separate property (of B. Schwartz) 41,000.00
DEFICIENCY JUDGMENT $290,076.49
TABLE NOTES:
(1) In the order dated January 3 1996 the Court authorized the recovery of interest at the rate of 8% a year under General Statute § 37-1. The order awarded $50,660 in interest calculated from October 4, 1992, the date the debt became due.
(2) The $43.83 per diem being calculated as follows: ($200,000 X .08) -365.
"[D]eficiency judgments are calculated pursuant to [General Statutes] § 49-14 (a), which provides in relevant part: `At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing . . . At such hearing the court shall hear the evidence, establishing a valuation for the mortgaged property and shall hear the evidence, establish a valuation for the mortgaged properly and shall render judgment for the plaintiff for the difference, if any between such valuation and the plaintiff's claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.' (Emphasis in original.) " Linden Condominium Assn, Inc. v. MeKeima, 247 Conn. 575, 587-88, 726 A.2d 502 (1999).