Opinion
No. CV-03-0100465 S
February 15, 2006
MEMORANDUM OF DECISION
The plaintiff, Joseph Konefal and the defendant, Martin Konefal are brothers. Their respective homes in Rock Fall, Connecticut are immediately adjacent to each other. Both parties are approximately eighty years of age. The defendant perceives that the plaintiff has somehow acquired property which should had been devised to the defendant.
On August 16, 2000, this dispute resulted in an incident in which the plaintiff asserts that he was physically assaulted and injured by the defendant. The August 16, 2000 incident was the subject of litigation between the parties in this court, Docket No. CV-01-0093903 S. The incident also resulted in criminal charges against the defendant, Martin Konefal. The civil action was commenced on December 4, 2000, and in that action the defendant was defaulted for failure to appear on June 8, 2001.
In the criminal case, the defendant was ordered on July 25, 2001, to submit to a competency evaluation. The defendant was found incompetent with respect to the criminal charges on September 20, 2001. In the civil action on November 21, 2001 at a hearing in damages, the plaintiff obtained a judgment against the defendant in total amount of $25,810.00. On February 25, 2002, weekly payments of $35.00 a week were ordered. In the civil action, the plaintiff failed to provide the defendant with notice of judgment after default for failure to enter an appearance in accordance with Practice Book § 17-22. The plaintiff did provide service to the defendant of the February 25, 2002 order of payments.
In the criminal matter the defendant was subjected to a second competency evaluation on court order of May 15, 2002; and on June 25, 2002, again found to be incompetent. A third competency evaluation on the criminal matter was ordered on July 25, 2002, and on September 5, 2002, at a hearing the defendant was found incompetent and incapable of being restored to competency. In the civil action the plaintiff filed his judgment lien on December 4, 2002.
This action was commenced on January 14, 2003, wherein the plaintiff seeks to foreclose his judgment lien. In this action, the defendant was again defaulted for failure to appear, however, that default was reopened pursuant to Practice Book § 17-31, upon his filing of an answer on April 14, 2003. The defendant, along with an answer, filed a first special defense asserting his incapacity and incompetency. In addition, the defendant asserted counterclaims of (Count One), Battery, (Count Two), Trespass, (Count Three), Abuse of Process, relating to the incident of August 16, 2000.
The case was claimed for a jury trial and the parties selected a jury and at a pretrial hearing on December 12, 2005, the court, sua sponte, questioned the appropriateness of a jury trial for a foreclosure action in view of the untimeliness of the defendant's counterclaims. On December 13, 2005, the court dismissed the jury and dismissed the defendant's counterclaims as untimely. The court advised the parties that it would hear the foreclosure action and would consider the defendant's competency as an equitable defense.
The defendant, on December 13, 2005, filed for the first time a motion to open the judgment entered on November 21, 2001, in the underlying civil matter CV-01-0093903S in which the defendant was defaulted for failure to appear.
The plaintiff at the trial introduced evidence of the value of the defendant's property. The property is owned by the defendant and his wife, Mary P. Konefal. The court finds based on the appraisal evidence that the property has a fair market value of $247,000.00. The court finds the updated debt due the plaintiff in the amount of $40,262.75. The plaintiff is awarded an appraisal fee of $350.00, title search fee of $150.00, and attorney fees in the amount of $5,000.00. The plaintiff seeks attorney fees in the amount of $18,127.00, but the court declines to award fees in that amount.
The court at the date of trial in December of 2005, denied the motion to open without prejudice. Upon reconsideration the court affirms its decision to deny the motion to open.
"It is well recognized that our courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice." Richards v. Richards, 78 Conn.App. 734, 739, 829 A.2d 60, cert. denied, 266, Conn. 922, 835 A.2d 473 (2003). "Where, however, the motion [to open] is untimely and the time limitation has not been waived, the trial court is without jurisdiction to entertain the motion." Batory v. Bajor, 22 Conn.App. 4, 8-9, 575 A.2d 1042, cert. denied, 215 Conn. 812, 575 A.2d 1042 (1990).
"A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a operates as a limitation on a trial court's authority to grant relief from a judgment." Kim v. Magnotta, 249 Conn. 94, 101-04, 733 A.2d 809 (1999). General Statutes § 52-212a provides in relevant part: "[u]nless 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." Practice Book § 17-4 states essentially the same rule.
Defendant's counsel in his criminal case knew of the default judgment on or about the date it was entered in 2001, as did the defendant's adult son. Defendant's counsel in this foreclosure action asserted on April 15, 2003, the defendant's incompetency as a special defense in this foreclosure action. The court is of opinion that incompetency may be grounds for a motion to open. In Twichell v. Guite, 53 Conn.App. 42 (1999), 728 A.2d 1121 and McLaughlin v. Smoron, 62 Conn.App. 367, 771 A.2d 201 (2001), the court found a lack of evidence of incompetency, but implicitly considered the defendant's incompetency as a grounds for consideration of a motion to open. In view of the fact that the defendant and his current counsel knew of the default but failed to move to open until the date of trial, the court is without jurisdiction to open the default judgment.
The court, though unable to open the judgment, is cognizant of the defendant's incompetency during the litigation of the underlying action in which the debt arose. In the month following his default for failure to appear, the defendant on July 25, 2001, was ordered evaluated for competency in the criminal case and was found incompetent on September 20, 2001, June 25, 2003, and again on September 5, 2002; at which time it was also found that he was not capable of restoration.
"As a general matter, we note that it is well established in our jurisprudence that [f]oreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done . . . [B]ecause a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to insure that complete justice is done." Foreclosure may be withheld by the court on the grounds of equitable considerations and principles. Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 405, 867 A.2d 841 (2005). (Internal quotation marks and internal citations omitted.)
In this action the court finds that the defendant, Martin Konefal, was incompetent at the time of the litigation of the underling debt. The court's observation of the defendant at the pretrial hearing suggests that Martin Konefal remains incompetent. Martin Konefal is approximately eighty-four years of age (see the affidavits in Docket CV01-0093903) and owns the property subject to this foreclosure action jointly with his wife who is approximately his age. In considering whether to grant foreclosure, the court finds that the equitable considerations of the defendant's incompetency, age and joint ownership of the property with his elderly wife require the court to withhold the equitable remedy of foreclosure.
The court in weighing the equities of this action recognizes that the plaintiff is also an elderly person and is frustrated in his efforts to collect the debt. However, the plaintiff may lien the property for his debt, fees and costs awarded in this action. He will continue to have the security of the property for the ultimate collection of the debt.