156 Conn.App. 1
Conn. App. Ct.2015Background
- Wells Fargo (as trustee) brought foreclosure on 181 Fillow St., Norwalk, based on a 2002 note/mortgage; several Treglias were named as defendants.
- Clerk entered default against Patrick Treglia for failing to disclose a defense after a Practice Book §13-19 demand.
- Plaintiff filed a motion for summary judgment (Aug 10, 2012). Patrick filed an answer and a motion to set aside the default on Nov 5, 2012; the clerk did not set aside the default.
- Trial court denied Patrick’s motion to set aside the default, treated the summary judgment motion as equivalent to a motion for judgment, granted summary judgment, and entered strict foreclosure.
- Richard Treglia sought intervention and then to be cited in as a defendant; the court denied intervention and later denied the motion to cite him in (court noted the citation motion was not properly certified to all parties).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a plaintiff's motion for summary judgment operates as a "motion for judgment" for purposes of Practice Book §17-32(b) so the clerk need not set aside a default where the defaulted party files an answer before judgment | Plaintiff: Summary judgment has same practical effect as motion for judgment; therefore court discretion applies and clerk need not automatically open default | Patrick: §17-32(b) mandates the clerk set aside default if an answer is filed before a judgment after default unless a motion for judgment (not summary judgment) or hearing in damages has been filed | Held: A motion for summary judgment is not a motion for judgment under §17-32(b); because Patrick filed an answer and plaintiff never filed a motion for judgment on default, the clerk was required to set aside the default (reversed as to Patrick) |
| Whether the court erred in denying the motion to cite in Richard Treglia as a party defendant | Plaintiff: No requirement to add Richard; procedural defects (failure to certify motion) and joinder not mandatory here | Patrick/Richard: Court should add Richard under §52-107 (and intervene) because he has an ownership interest that will be affected | Held: Court properly denied the motion to cite in (procedural defect: not certified to all parties) and was not required to add Richard on its own motion; joinder not mandatory and omission does not preclude foreclosure against other named parties (affirmed) |
Key Cases Cited
- Gillis v. Gillis, 214 Conn. 336 (Conn. 1990) (motion to open/vacate judgment reviewed for abuse of discretion)
- CAS Construction Co. v. Dainty Rubbish Service, Inc., 60 Conn. App. 294 (Conn. App. 2000) (interpretation of practice rules is a question of law)
- Friezo v. Friezo, 281 Conn. 166 (Conn. 2007) (statutory interpretation reviewed plenarily)
- Wiseman v. Armstrong, 295 Conn. 94 (Conn. 2010) (principles of statutory construction apply to Practice Book rules)
- State v. Strickland, 243 Conn. 339 (Conn. 1997) (rules of practice should be construed harmoniously)
- Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285 (Conn. 1991) (summary judgment inappropriate where defaulted defendant already has default judgment)
- Automotive Twins, Inc. v. Klein, 138 Conn. 28 (Conn. 1951) (judgment upon default is entered after default and hearing in damages)
- Coppola v. Coppola, 243 Conn. 657 (Conn. 1998) (policy preference to decide disputes on the merits)
- Leftridge v. Wiggins, 136 Conn. App. 238 (Conn. App. 2012) (court may not act on motions that were not properly served/certified to parties)
- Loricco Towers Condominium Assn. v. Pantani, 90 Conn. App. 43 (Conn. App. 2005) (omitted property interest holders not bound by judgment if not joined)
- Gill v. Shimelman, 180 Conn. 568 (Conn. 1979) (parties not joined are not bound by judgments affecting property interests)
- Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628 (Conn. 1989) (lack of necessary party implicates jurisdiction only when statute mandates naming/serving that party)
- Yellow Cab Co. of New London & Groton, Inc. v. Dept. of Transportation, 127 Conn. App. 170 (Conn. App. 2011) (same principle on necessary parties and statutes)