Opinion
(7682)
The plaintiff sought damages for default on a promissory note, breach of a fiduciary duty, fraudulent conveyance, negligent misrepresentation and fraud. The trial court did not render a decision within the time prescribed by statute ( 51-183b) and requested the parties to waive the 51-183b time limitation and to consent to an extension of time. Only the plaintiff agreed to waive the limitation period. Alter the trial court rendered a decision that substantially favored the defendants, they filed a written waiver of 51-183b. The plaintiff moved to set aside the judgment and for a new trial on the ground that all parties had not consented to the late judgment before it was rendered. The trial court vacated the judgment, declared a mistrial and assigned the matter for a new trial. On the defendants' appeal to this court, held: 1. The plaintiffs claim that the judgment of the trial court was not an appealable final judgment was unavailing; an order opening a judgment is an appealable final judgment where, as here, the issue raised is the trial court's power to open that judgment. 2. The trial court erred in setting aside the judgment; a late decision can only be avoided by a party who has not waived the provisions of 51-183b, and a party who has not waived those provisions before the judgment may do so afterwards.
Argued September 19, 1989
Decision released November 28, 1989
Action to recover damages for default on a promissory note and for fraud, misrepresentation and breach of fiduciary duties, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Lewis J.; judgment in favor of the plaintiff against the named defendant and in favor of the defendants Carl H. Freyer et al.; thereafter, the court granted the plaintiff's motion to set aside the judgment and ordered a new trial, and the defendants appealed to this court. Error; judgment directed.
Paul L. Bollo, for the appellants (defendants).
Haden P. Gerrish, with whom, on the brief, was Bruce F. Cohen, for the appellee (plaintiff).
The defendants appeal from the declaration of a mistrial following the court's granting of action to set aside the judgment. The defendants claim that the court lacked the power to set the judgment aside. We agree, and find error.
The facts are not in dispute. The plaintiff sued the defendants, United Caribbean, Inc., Freyer Corporation and Carl H. Freyer individually and as a promoter and business manager of Freyer Corporation. The complaint sought damages for default on a promissory note, breach of fiduciary duty, fraudulent conveyance, negligent misrepresentation and fraud. The trial was completed on August 17, 1987, and the last posttrial brief was filed on May 23, 1988.
Because he had not rendered a decision with 120 days of the close of trial, the trial judge, on October 5, 1988, sent a letter to all parties of record requesting that they waive the provisions of General Statutes 51-183b, and extend the time for the court to render its decision until December 15, 1988. Although the plaintiff consented to the proposed extension of time, the defendants notified the court on October 25, 1988, that they would not execute the consent. On October 26, 1988, 156 days after the last posttrial brief was filed, the court rendered a judgment that substantially favored the defendants Carl Freyer and Freyer Corporation. Thereafter, on October 28, 1988, the defendants filed a written waiver of General Statutes 51-183b.
General Statutes 51-183b provides: "Any judge of the superior court and any state 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 memorandum of decision provides: "Judgment may enter for the plaintiff against [United Caribbean, Inc.] on its promissory note of $50,000 dated September 25, 1981; judgment may enter for the defendants Carl Freyer and Freyer Corporation on the basis that: plaintiff has failed to sustain her burden of proof of fraudulent misrepresentation; fraudulent nondisclosure of material information; mismanagement; breach of fiduciary duties; or that the so-called `corporate veil' should be `pierced.'"
The plaintiff filed motions to set aside the judgment and for a new trial, because the judgment was not rendered within 120 days of the completion date of trial, as required by General Statutes 51-183b. The court vacated the judgment, declared a mistrial, and assigned the matter for a new trial. The court's decision was based on the fact that all parties had not consented to the issuance of the late judgment before it was rendered.
Before turning to the merits of the defendants' appeal, we address the plaintiff's claim that this case is not properly before this court. The plaintiff argues that when a trial court's judgment is set aside or opened, a case returns to its prior status, as if the original judgment had never been entered. The plaintiff asserts that because the court vacated its October 26, 1988 decision, there is no final judgment from which an appeal may be taken.
Although the general rule is that an order setting aside a verdict or opening a judgment is not ordinarily a final judgment within the meaning of General Statutes 52-263; Solomon v. Keiser, 212 Conn. 741, 746, 562 A.2d 524 (1989); our Supreme Court has recognized an exception to this rule. It has held that an order of the trial court opening a judgment is an appealable final judgment where the issue raised is the power of the trial court to open. Id., 747-48, citing Connecticut Light Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980).
In the present case, the sole issue presented by the defendants is whether the trial court had the power to set aside the judgment. This appeal fits within the exception carved out in Costle. We therefore turn to the merits of the defendants' claim.
General Statutes 51-183b mandates that judgment in a civil, nonjury case be rendered within 120 days from the completion date of the trial unless "the parties . . . waive the provisions of this section." A trial ends with the filing of the last posttrial brief. Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1984). In the present case, the last posttrial brief was filed on May 24, 1988, and the decision was not rendered until October 26, 1988. Thus, the 120 day period allowed by General Statutes 51-183b had passed and the judgment was not timely.
A judgment rendered outside of the statutory period is voidable, or defective, but it is not void. Frank v. Streeter, supra, 603. Where a decision is voidable, the court does not lack subject matter jurisdiction to render the judgment. Whitaker v. Cannon Mills Co., 132 Conn. 434, 438, 45 A.2d 120 (1945); Foley v. Douglas Bro., Inc., 121 Conn. 377, 380, 185 A. 70 (1936). Such a judgment is "erroneous unless there are circumstances amounting to a waiver of the irregularity or the consent of both parties. . ." Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 537, 294 A.2d 573 (1972).
Contrary to the plaintiff's claim, 51-183b does not require that the consent of all parties be obtained prior to a late judgment. The statute requires only an "objection seasonably made after the filing of the decision." Id., 538. Failure or refusal of a party to consent to a waiver of the statute's requirement before a late judgment does not preclude that party from waiving or asserting that requirement after a late judgment has been rendered. Indeed, if such a precondition did exist, failure to obtain the prior consent of all the parties would necessarily cause any late judgment to be void rather than merely voidable, and this is clearly not the established rule. We conclude, therefore, that a late decision can be avoided only by a party who has not waived the provisions of 51-183b, and that a party who has not waived those provisions before the judgment may do so afterwards.
The trial court in the present case had the power to render judgment on October 26, 1988, because, although the decision was late, it had jurisdiction over the subject matter. It did not, however, possess the power to set aside the judgment at the request of the plaintiff, who by her express waiver had accepted the late judgment and was therefore bound by it. At the time of judgment, the defendants were the only parties who could have avoided the judgment by seasonably moving to vacate it. On October 28, 1988, however, the defendants waived their statutory right to a timely judgment, as they were entitled to do.
The plaintiffs argument that the defendants must be estopped from waiving after a prior refusal to consent is without merit. There is no indication that either the plaintiff or the court had detrimentally relied on the defendants' refusal to consent. The plaintiff also argues that to allow the defendants to waive the provisions of 51-183b results in a miscarriage and circumvention of justice and that it is manifestly unfair. This claim, too, is without merit. The defendants did not gain a favorable decision by their refusal to consent, as the trial court need not have rendered a late judgment. The late judgment merely gave the defendants the option to avoid that judgment by asserting their right to a timely judgment, or to waive that right.
In summation, General Statutes 51-183b places no obligation upon the parties to a civil action, but requires the judge to render a timely decision. The parties may waive the provisions of the section, refuse to waive, or take no action. See Bogaert v. Zoning Board of Appeals, supra, 537-38. Although the judgment herein was voidable, ultimately, all of the parties expressly waived the defect of its untimeliness, and it should not have been set aside.