Burritt Mutual Savings Bank of New Britain v. Tucker

Citations: 183 Conn. 369; 439 A.2d 396; 1981 Conn. LEXIS 487

Court: Supreme Court of Connecticut; April 7, 1981; Connecticut; State Supreme Court

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Stanley V. Tucker appealed a judgment of strict foreclosure on a mortgage for an apartment building and two associated contempt orders. He raised multiple issues regarding the foreclosure judgment and the contempt findings. His arguments included claims of improper default for failing to plead, reliance on an affidavit of debt that included unpleaded taxes, the allowance of attorney's fees without evidence, improper taxation of costs without notice, unsupported valuation of the foreclosed property, constitutional due process violations, and alleged bias of the trial judge.

The timeline established that the complaint was initiated on October 17, 1978, requiring responsive pleadings by November 1, 1978. A continuance was granted until February 23, 1979, when default was entered against Tucker for failure to plead. He had previously filed a motion to dismiss based on lack of subject matter jurisdiction, asserting that delinquencies arose from a receiver's control of the property and his intention to rectify payments with a second mortgage. The court found this motion inappropriate, as it did not pertain to jurisdiction but rather to the merits of the case. Consequently, the trial court denied the motion to dismiss and rejected Tucker's request for a delay to file another pleading, leading to the default judgment.

The trial court's decision to default the defendant, who was self-represented, was upheld due to the defendant's failure to plead within the required fifteen days, despite a statutory continuance for nonresident defendants. The defendant's mistaken belief that he was not obligated to respond until the continuance expired did not justify his delay. The motion filed just before the foreclosure hearing was deemed unsubstantiated and lacked any viable defense, suggesting that the defendant aimed solely to postpone proceedings. The court found no abuse of discretion in denying the defendant's requests and ordering the default. 

Rules designed to promote justice may be interpreted flexibly, but courts can disregard frivolous pleadings that disrupt legal processes. The defendant's lack of a substantial defense was further evidenced by his subsequent motion to set aside the default, which failed to present any justifiable arguments. The court found that even if there were initial doubts regarding the default judgment, there was no evidence of a valid defense warranting a trial. 

After the default, the court assessed the mortgage debt based on an affidavit from a bank officer, which the defendant disputed, arguing that the officer should have testified in person. Although the defendant was allowed to present his own calculations, the court ultimately accepted the affidavit's amount. The plaintiff argued that the affidavit was admissible under Practice Book 527 since no defense was raised concerning the debt amount; however, the defendant did contest the figures, making the rule inapplicable. The court's reliance on the affidavit was also challenged due to hearsay issues, as the plaintiff's claim that the dispute was merely about mathematical accuracy was unsupported by the evidence transcript.

The defendant asserted a waiver of late charges and challenged the inclusion of tax amounts in the mortgage debt calculations. However, the record lacks clarity on how the trial court arrived at its figures, with the only supporting document being an affidavit of debt. The defendant's argument that taxes should not have been included was deemed unfounded, as the complaint did state that unpaid taxes were due. Regarding attorney's fees, the defendant accepted the reasonableness of the sixty hours claimed by the plaintiff’s counsel, suggesting a rate of $40 per hour, while the court ultimately awarded $80 per hour based on the counsel's qualifications. The defendant did not object to the court's determination of this rate nor to the lack of expert testimony on attorney compensation.

The defendant alleged that costs were taxed post-foreclosure judgment without notice, in violation of Practice Book 412; however, there is no record of an appeal regarding this taxation, precluding consideration of the claim. Additionally, the defendant contested the valuation of the property, citing hearsay in the appraiser's testimony, although most of this was stricken at the defendant's request. The trial judge personally inspected the property and noted its deficiencies, leading to a valuation higher than that of the plaintiff's appraisers. The defendant's claim that the strict foreclosure process is unconstitutional was not raised at trial and therefore cannot be considered on appeal, as per established procedural rules. The defendant did not present any exceptional circumstances to allow for consideration of unraised constitutional claims.

The defendant seeks to overturn two contempt findings related to his interference with a court-appointed rent receiver, primarily challenging the constitutionality of Practice Book Rules 506-510, which govern the appointment of rent receivers. He argues that these rules (1) improperly modify substantive rights, (2) lack standards for appointing receivers, and (3) violate due process due to inadequate hearing procedures, inclusion of personal property rentals in the receivership order, reliance on hearsay, and insufficient protection of debtor interests. The absence of a transcript from the receivership proceedings prevents a thorough evaluation of these claims. The existing record includes a receiver application, a written objection from the defendant (which did not assert constitutional issues), and an ineffective order appointing a receiver, with a subsequent appointment occurring on January 8, 1979. The defendant was found in contempt for collecting rents after the appointment, violating a court order. Following a March 15, 1979 hearing, he was ordered to pay $58.95 to the receiver and fined $100 for contempt. A subsequent contempt finding on June 27, 1979, resulted in an additional order to pay collected rents to the receiver and an increase of $1,500 to the mortgage debt for attorney fees. The defendant contends that the contempt judgments are flawed due to the judgment file's failure to detail the facts supporting the contempt conclusions, a requirement that applies only to criminal contempts adjudicated summarily.

Contempt proceedings against the defendant were primarily civil, except for the imposition of a $100 fine. The defendant argued that he should not be held in contempt since the orders he allegedly disobeyed were stayed due to an appeal filed on April 2, 1979. However, this appeal was related to the foreclosure judgment and prior contempt findings but did not address the appointment of the receiver or the order restraining his collection of rental payments until December 28, 1979. As such, the defendant's claims of not being bound by these orders were deemed without merit. The contempt findings were based on the defendant's interference with the receiver, and the March 21, 1979 supplemental order merely clarified previous rulings. The evidence supported the contempt findings, and the defendant did not contest this. 

The $100 fine imposed was categorized as punishment for criminal contempt, which differs from civil contempt in that it cannot be absolute but must be conditional and coercive. Criminal contempt occurring outside the court's presence must adhere to specific procedures outlined in Practice Book. The defendant's conduct, which led to the fine, occurred outside court and thus required the proper procedure for criminal contempt, which was not followed. 

Additionally, the defendant filed a motion for a new trial citing ten grounds for disqualifying the trial judge, which was denied. Upon review, no personal bias was found, and the cited grounds were largely rulings against the defendant. The review revealed no valid basis for the defendant's claims of prejudice, concluding that dissatisfaction with court rulings does not constitute grounds for disqualification. The court vacated the fine and contempt finding, remanding the case to determine the debt amount and establish new law days. The decision was concurred by other judges.

The motion to set aside the default was based on two grounds: (1) the defendant argued that the expiration of the three-month statutory continuance on February 16, 1979, allowed him an additional fifteen days to plead; and (2) he claimed to have a valid defense related to an agreement to maintain the mortgage through a second mortgage. However, the first ground does not address the merits, and the second is vague, with no evidence presented that the plaintiff agreed to any refinancing. According to Practice Book 412, bills of costs in civil cases can be taxed by the clerk with reasonable notice to the opposing party, who may appeal the taxation. The defendant's appeal was related to a Memorandum of Decision dated March 19, 1979, concerning an order from March 8, 1979, which aligns with the foreclosure judgment date, although the judgment file incorrectly states March 7, 1979. There is no record of the March 19 reference, but the defendant did appeal a contempt order filed on March 21, 1979. Lastly, should the plaintiff accept the amount admitted by the defendant, there would be no need for further proceedings to determine the debt amount, which is $132,832.