Opinion
No. CV 02 0282281S
January 9, 2006
The plaintiff's motion #127 seeks to open and set aside the judgment entered on December 17, 2004, for two reasons: that the judgment was entered based on a mutual mistake of fact, and that the judgment was void because this court did not issue its decision within 120 days after completion of trial as required by General Statutes § 51-183b. Plaintiff's motion to reargue motion for mistrial #128 also makes the latter claim. For the reasons set forth below, motions #127 and #128 are denied. The plaintiff has sought discovery to pursue its motion to open and set aside, to which the defendant has objected. For the reasons set forth below, the defendant's objection (# 130) to such discovery is sustained.
I — PLAINTIFF'S CLAIM THAT THE COURT LACKED JURISDICTION TO RENDER DECISION
The case was originally submitted upon a written stipulation of facts filed on June 7, 2004. The defendant filed a trial brief that same day, and the plaintiff filed its trial brief on June 10. This court received the briefs and stipulation on June 30th, and on July 2 sent a letter to counsel stating that
June 30, 2004 is the date on which I had received all briefs in my chambers. Thus, the court is going to consider . . . that the 120 days for issued decision will run from June 30, not June 7 . . .
The court's letter mistakenly referred to the matter as having been submitted for decision on summary judgment, but a July 14 letter from counsel to the court clarified that mistake. The court also mistakenly referred to plaintiff's brief as having been filed on June 7, when it was defendant's brief filed that day and plaintiff's not until three days later. A copy of the letter is in the court file.
Neither party responded at that time that they regarded the 120 days as running from an earlier date.
This case concerns enforcement of a subcontractor mechanic's lien for electrical contractor services plaintiff provided on the defendant's property. The defendant property owner had entered into a construction contract with a general contractor. The plaintiff was one of several subcontractors engaged by the general contractor to perform services at defendant's premises. The principal issue originally briefed by the parties was whether payments the defendant land owner made to the general contractor had been in good faith.
Before proceeding on the merits of any question, a court must, of necessity, have subject matter jurisdiction to address the issue. Although neither party had raised the issue, a question of subject matter jurisdiction may be raised by the court sua sponte, as well as by the parties:
Subject matter jurisdiction may be raised at any time by any party or sua sponte by the court. See Beneduci v. Valadares, 73 Conn.App. 795, 805, 812 A.2d 41 (2002).
Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 536, f.n. 7, 871 A.2d 380 (2005). At the time this matter was before this court, case law held that noncompliance with the notice requirements of § 46b-34 deprives the court of subject matter jurisdiction over a mechanic's lien. It was therefore appropriate for the court to consider whether it had jurisdiction here.
See, e.g., Steeltech Building Products v. Viola, Superior Court, judicial District of Hartford, Docket No. CV 98-0580266 S (May 15, 2000, Wagner, J.T.R.) (Service of lien on defendants beyond the 30 days); Yurchuk v. Soro Land Company, Superior Court, judicial District of Litchfield, Docket No. CV 00-0083999S (July 17, 2003, Frazzini, J.) Although the Appellate Court held, after this court issued its Memorandum of Decision, that non-compliance with 46b-34 does not deprive the court of subject matter jurisdiction; Louis Gherlone Excavating v. Mclean Construction, 88 Conn.App. 775, 871 A.2d 1057 (2005), the court also held that noncompliance with § 46b-34 was a valid defense to a mechanic's lien claim.
On October 20, 2004, the court thus ordered the parties to brief the issue of whether compliance with § 46b-34 was necessary for the mechanic's lien to be enforceable. The parties were aware, through that inquiry, that the court was considering the question of its jurisdiction. The court could not proceed to the merits until the court had resolved that question.
Jurisdiction of the subject-matter is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. A claim that the court lacks subject matter jurisdiction may be raised at any time. Once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented and the court must fully resolve it before proceeding further with the case. Parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.
Zollo v. Abbott Terrace Health Center, Court Judicial District of Waterbury, Docket No. CV 04-50000065 (October 6, 2005 Matasavage, J.) ( 40 Conn. L. Rptr. 125) (Internal quotations, alterations and citations omitted.)
Defendant filed a brief responding to this inquiry on November 2, 2004. Its brief argued that the plaintiff was "required to plead and prove notice to the owner in compliance with General Statutes § 49-34." (Def.'s Br. in Response to Court Order, at 5.) The plaintiff also replied to the court's order, by filing documents that, if they became part of the record, would have shown compliance with the mandates of §§ 46b-34 and 46b-35 (copies of a return from a "marshal/indifferent person" showing timely service on defendant of the mechanic's lien and of plaintiff's intent to claim the lien). On November 17, the court entered an order stating that "as these documents are not part of the written stipulation of facts upon which this case was submitted for decision, the court has ordered their return unless the stipulation is amended." The court that day also issued an order clarifying its request for supplemental briefing.
On November 23, defendant filed an additional brief in response to the court's inquiry. On November 26, plaintiff moved for a mistrial on the grounds that the trial briefs had been "filed with the court on June 10 and acknowledged by the Court on June 27, 2004, [and] the court was required to render its decision within 120 days of the completion of trial." The court denied that motion on December 1, 2004:
For purposes of the 120 day time limit of sec. 51-183b began to run from the date that the parties filed the supplemental briefs that the court found necessary for a well reasoned decision. Bramwell v. Department of Correction, 82 Conn.App. 483, 488 (2004), citing Cowles v. Cowles, 71 Conn.App. 24, 26 (2002).
Two weeks later, the court issued its Memorandum of Decision. After its own research and considering the briefing submitted, the court had found no authority that a party seeking to enforce a mechanic's lien must, in the absence of a claim of noncompliance with the notice requirements of the mechanic's lien statutes, prove such compliance. Having thus considered the question of subject matter jurisdiction, the court concluded that the issues it had raised on the order for supplemental briefing did not affect subject matter jurisdiction and decided the case on the issues raised by the parties in their initial briefs: "The facts stipulated by the parties do not establish that plaintiff failed to comply with these statutes. As there is no evidence establishing lack of jurisdiction, the court will render judgment on the issue presented by the parties." Mem. of Dec., fn.2, p. 2.
Plaintiff's present motions again claim that the court lacked jurisdiction to issue the decision because the 120-day time period had passed. Plaintiff asserts that the briefs and materials submitted to the court in response to its orders for supplemental briefing "did not constitute briefs or other materials that were necessary for a well reasoned decision in this case." (Pl.'s Mem. of Law in Support of Motion to Open or Set Aside Judgment, at 8):
The court's 12/17/04 Memorandum of Decision acknowledges the material submitted on Notice issues did not have any effect on the decision it rendered. The Notice issue raised by the Court was never an issue in the case proper as tried by the parties and the briefing on notice should not have served as a tolling agent of the 120 day rule.
Id., at 9.
This court's ultimate conclusion that there was no jurisdictional impediment to considering the case on the issues submitted by the parties does not negate the fact that the court acted within its legitimate authority by considering the question of its jurisdiction and asking the parties to address issues affecting the court's jurisdiction. The issue of subject matter jurisdiction was a question that the court found necessary for its decision. The Memorandum of Decision shows that the trial court had considered the question of its jurisdiction, concluded that it had jurisdiction, and thus decided the case on the issues presented by the parties. The plaintiff's argument would subject to scrutiny not only the validity and reasonableness of a trial court's decision that briefing on a particular issue was "necessary for a well reasoned decision," but the internal mental deliberations of the trial court, and could lead to the deleterious effect of chilling trial courts from seeking briefs on issues it is considering. This court's request for briefing was within its discretion and authority as the trier of this case. Thus, this case fits well within the rule of Bramwell v. Department of Correction, 82 Conn.App. 483, 488 (2004) that the completion date of a trial, for purposes of the 120-day time limit of § 51-183b, runs from the date that the parties filed the supplemental briefs that the court found necessary for a well-reasoned decision.
The plaintiff's second argument is that the 120 days had expired by the time of the court's first request for briefing on October 20, 2004. That claim requires a consideration of the statute itself. Section 51-183b of the General Statutes states that
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.
The purpose of § 51-183b is to ensure that trial judges decide cases within a reasonable period after conclusion of a trial.
"The salutary effect of the statute is to compel diligence and a prompt decision on the part of the judge who tried the case, and to avoid the manifest disadvantages attendant on long delay in rendering judgment . . . Thus the statute . . . attempts to balance judicial expediency with fairness to the parties and to reduce delays over which counsel have little, if any, control."
(Citations omitted.) Gordon v. Feldman, 164 Conn. 554, 556-57, 325 A.2d 247 (1973).
Although determining the "completion date" of a civil trial is usually a simple matter, that is not the case here, for there was no trial. Instead the case was submitted on a Stipulation of Facts and written briefs. Plaintiff asserts that the 120 days should run from the date the last brief was filed. As the court's letter of July 2 stated, however, this court did not have the trial briefs until June 30th. That date is the best date to be considered as the completion date of the "trial" here, since that was the first time that the trier of this case would have been aware of the issues needing decision and the case could be considered to have been fully submitted to the court deciding the case.
In addition, the 120-day requirement may, under the express terms of the statute, be waived by the parties. "Waiver is a question of fact." Cowles v. Cowles, 71 Conn.App. 24, 26, 799 A.2d 1119 (2002)."Parties to an action can waive the statutory time limits either by conduct or consent." Cowles v. Cowles, supra, 71 Conn.App. 26, citing Lauer v. Zoning Commission, 44 Conn.App. 542, 547, 690 A.2d 893 (1997), reversed on other grounds, 243 Conn. 485, 716 A.2d 840 (1998). "Express consent, however, is not required." Waterman v. United Carribean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990). Ordinarily a party need not notify a court before the 120 days have lapsed that it intends to seek a mistrial should the court not issue its decision in a timely fashion. In this case, however, the court specifically notified the parties, in the letter of July 2, that the court had not received the briefs until June 30 and would consider that date as beginning the 120-day period. Neither party objected. On the facts of this case, plaintiff's failure to object in a timely manner to the court's position constituted a waiver of any claim that the 120 days began running before June 30 (or, to put it differently, a waiver of the running of the 120-period for the period June 10 through June 30). A party should not be allowed, by its silence in response to such a letter from the court, to lie in wait and later ambush the court and other side with a claim that the statute has been violated.
Moreover, after the date that plaintiff now claims the 120 days had run, plaintiff submitted documents to the court that directly responded to the court's request for briefing on October 20, 2004. That submission shows that plaintiff was still then acquiescing to the court's jurisdiction and further shows waiver. Not until after the court had returned those documents, an act that may have suggested to the plaintiff, because of the issue on which the court had asked for briefing, that its case was in jeopardy, and issued a second request for briefing did plaintiff claim that the court had exceeded the 120th day. A party that submits materials to the court in response to a request for briefing cannot later deny that its doing so acquiesced to the court's authority to render a decision. Under the facts of this case, the court finds that plaintiff waived application of the 120-day rule for the period from June 10 until June 30. The court's request for briefing fell within 120 days of June 30.
II — PLAINTIFF'S MOTION TO OPEN AND SET ASIDE THE JUDGMENT BASED ON MUTUAL MISTAKE OF FACT AND REQUEST TO CONDUCT DISCOVERY
The plaintiff's principal claim in the underlying action was that payments from the defendant to the general contractor were not made in good faith. The plaintiff's motion to open claims that the judgment should be set aside because it was "based on a mutual mistake of facts" contained in the written stipulation of facts submitted by the parties. More particularly, the plaintiff claims that a statement in the stipulation that payments from the defendant to the general contractor were for labor and materials was incorrect because the payments "were also for guaranteed profit . . ." (Pl.'s Mem. of Law, at 2.) Plaintiff claims that the separate line items for profit further show collusion and lack of good faith: "In an arm's length transaction between a land owner constructing a building on his property and a general contractor, there would be no guaranteed profit from the first application for payment through the last application for payment . . . Where guaranteed profit is paid monthly throughout a project, good faith is not present . . ." ( Id., 6.)
The plaintiff here seeks to conduct discovery in support of its motion to set aside the judgment and accordingly served upon defendant a written request for production seeking certain documents. The defendant duly objected, and the parties appeared with counsel on December 8, 2005, for argument on plaintiff's request for discovery and the defendant's objection. The defendant claims that the court lacks jurisdiction to hear the plaintiff's motion to open and to permit the plaintiff to conduct discovery on the grounds of mootness. As defendant correctly points out, a claim of mootness is a threshold issue implicating subject matter jurisdiction that the court must address before proceeding further. The claim of mootness here is that, because the parties agreed to substitute a letter of credit for the mechanic's lien, the action on the lien is moot. "After the agreed order discharged the claimed lien, the complaint became moot." (Def.'s Objection, 4.) Defendant argues that "[t]he defendant . . . is not a party to the letter of credit and has no liability upon it. The letter's existence does not save this case from being moot. Opening the court's judgment in this case cannot lead to any practical benefit to the plaintiff, so the motion to open is moot." Id., 5.
The court's order discharging the lien, to which both parties agreed, stated that "Upon agreement of the plaintiff and Village, the court hereby orders that the lien be discharged in full at such time, if any that Village presents the clerk of this court, in substitution for the plaintiff's claimed lien, with a letter of credit . . . which the court deems sufficient to indemnify the plaintiff for any damage which may occur by the discharged." The court file shows that such "an irrevocable letter of credit . . . for the account of the Village at Kensington Place" was filed with the clerk of court on November 18, 2004. The purpose of the letter of credit was to provide a means to satisfy plaintiff's claim should it prevail in this action. Adjudication of the parties' respective rights arising from the discharged mechanic's lien remains necessary in order to establish whether plaintiff is entitled to the letter of credit. The defendant is simply incorrect in its claim that plaintiff cannot obtain any relief through litigation of this matter, for if plaintiff were to prevail, the letter of credit is available to satisfy its claims.
Although the defendant also argues that plaintiff should have filed a motion specifically seeking to open the judgment for purposes of discovery, plaintiff's general motion to open and set aside the judgment is sufficient for that purpose. See, e.g., Nolan v. Nolan, 76 Conn.App. 583, 585, 821 A.2d 772 (2003) (opening judgment for purposes of allowing discovery when only a general motion to set aside on the grounds of fraud had been filed). Preliminary to such discovery, however, the plaintiff has the burden to substantiate allegations of mistake that would be sufficient to open the judgment. Oneglia v. Oneglia, 14 Conn.App. 267, 269, 540 A.2d 713 (1988).
There is no doubt that a stipulated judgment — that is, one entered by agreement of both parties — may be set aside upon a showing of mutual mistake of fact.
A judgment rendered upon a stipulation of the parties is in the nature of a contract and may be opened by the court if the stipulation was entered into by mutual mistake. A mutual mistake is one that is common to both parties and effects a result that neither intended.
(Citations omitted.) Inland Wetlands and Watercourses Agency of the City of Middletown v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991). Here, the judgment itself was not stipulated, but the underlying facts upon which the judgment was based were stipulated. The written stipulation of facts signed by counsel for both parties constituted judicial admissions binding on both of them. "Judicial admissions are conclusive on the party making them, and contrary evidence is not admissible unless the court in its discretion permits the admission to be withdrawn, explained, or modified." Tait's Handbook of Connecticut Evidence § 8.16.3(b), 3rd ed. 2001. Both parties in the present action were represented by counsel and elected to try the case on a written stipulation of facts. Both parties elected to rely on that stipulation of facts (at least with regard to the item on which plaintiff now claims mutual mistake) throughout the briefing period and until after the court issued its decision. Although there is authority that courts may exercise its discretion to permit variance from a judicial admission made by mistake, Kanopka v. Kanopka, 113 Conn. 30, 38-39, 154 A. 144 (1931), where the matter has already gone to judgment, the court must also consider the separate interest of the parties and court in finality of judgments.
The defendant's motion is thus subject to the standards for motions to open set forth in Practice Book Section 17-4 and General Statutes § 52-212a, as those provisions have been construed by our courts. "One of the essential requirements for the granting of [a motion to open] is that the evidence which the party seeks to offer could not have been known and with reasonable diligence produced at trial." Corbin v. Corbin, 179 Conn. 622, 626, 427 A.2d 432 (1980). Thus, the plaintiff must establish its due diligence for not obtaining the correct information in a timely manner and instead presenting the court with a "mistaken" fact. In that respect, the materials submitted in defendant's objection to plaintiff's request for discovery show, to the contrary, that plaintiff requested pretrial discovery that would have provided it with sufficient information to have avoided the alleged mistake of fact but that plaintiff did not sufficiently pursue its discovery request. In order to prove its claim of mutual mistake, plaintiff now requests discovery of numerous items that it previously sought in a March 21, 2003, Request for Production, plus a copy of the original contract, all change orders or amendments to the contract between the general contractor and defendant landowner, and documentation as to each payment the defendant made under the contract. All of these items were readily obtainable through pretrial discovery that plaintiff did not pursue before the parties submitted the stipulation of facts containing the alleged mistake.
Practice Book § 17-4, captioned "Setting Aside or Opening Judgments," provides as follows: "(a) 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. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court. (b) Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the judicial authority."
Section 52-212a of the General Statutes, captioned "Civil judgment or decree opened or set aside within four months only," provides in relevant part as follows: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, 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."
In order to show mutual mistake of fact, moreover, the plaintiff must also show that both parties were mistaken about the allegedly mistaken fact. Unlike fraud claims, inherent to which is the assertion that one side deliberately deceived the other, mistake of fact by only one party has never been sufficient to open a judgment based on a claim of mutual mistake. "The kind of mistake that would justify the opening of a stipulated judgment . . . must be mutual; a unilateral mistake will not be sufficient to open the judgment." Magowan v. Magowan, 73 Conn.App. 733, 741, 812 A.2d 30, cert. denied, 262 Conn. 934, 815 A.2d 134 (2003). Mutual mistake also requires that the mistake common to both parties effected a result intended by neither. Nothing plaintiff has alleged shows any possibility of proving mistake on the defendant's part. All the information that plaintiff seeks to prove its claim of mistake, for example, is information already in the possession of the defendant.
To paraphrase the court in Clapper v. Clapper, 3 Conn.App. 637, 490 A.2d 1030 (1985), the purpose of a motion to open is to permit the granting of a new trial when a party had a meritorious claim but did not have an opportunity to present it. It is not a device to correct a mistake that a party could have, in the exercise of reasonable diligence, known about at the time of the original trial. The information presented by the plaintiff on its motion to open and set aside the judgment does not satisfy the standards set by law for doing so. For the reasons specified above, plaintiff's Motion to Open and Set Aside Judgment (#127) and its Motion to Reargue Motion for Mistrial (#128) are denied. The defendant's Objection to the Plaintiff's Request for Production (#130) is sustained.