61 Conn. App. 481 | Conn. App. Ct. | 2001
Opinion
The defendant First Union National Bank (First Union)
This appeal stems from the foreclosure of various municipal tax liens on real property (premises) known as 884-902 Main Street in Hartford. Prior to commencing this foreclosure action, the plaintiff, pursuant to General Statutes § 12-195h
According to his return of service, a deputy sheriff, on February 11, 1998, served process on First Union by leaving a verified copy of the writ of summons and the complaint in the hands of the person in charge of First Union’s place of business at 30 State Street in Hartford. On March 19,1998, First Union was defaulted for failure to appear. The court, Satter, J., granted the plaintiffs motion for judgment of strict foreclosure on May 18, 1998. On May 21, 1998, First Union filed the first of two motions to open the judgment of strict foreclosure. First Union’s second motion, filed on June 15, 1998, claimed that good cause existed to open the judgment. The court, Freed, J., denied both motions on June 15, 1998. On June 22, 1998, First Union filed a motion to reargue the second motion to open the judgment, claiming that there was good cause to do so. The court, Freed, J., denied the motion to reargue. First Union thereafter appealed to this court.
I
Before we resolve First Union’s claims pertaining to the denial of its motions, we must address its challenge
First Union bases its claim that the court lacked subject matter jurisdiction on General Statutes §§ 12-172 and 12-181.
To resolve First Union’s subject matter jurisdictional challenge, we note the difference between a court’s jurisdiction and its statutory authority. “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420-21 n.3, 426 A.2d 1324 (1980).
In Connecticut, the trial court has authority, pursuant to § 12-172, to adjudicate the foreclosure of tax liens according to the laws enacted by our legislature. Section 12-181 provides in relevant part that “[i]f one or more municipalities foreclose one or more tax liens on real estate and acquire absolute title thereto and if any other municipality having one or more tax liens upon such real estate at the time such foreclosure title becomes absolute has not, either as plaintiff or defendant, been made a party thereto, the tax liens of each of such other municipalities shall not be thereby invalidated or jeopardized.” Although that statute may preclude the invalidation of First Union’s tax hens, it does not deprive the court of subject matter jurisdiction over the cause of action. First Union’s challenge to the trial court’s subject matter jurisdiction is, therefore, without merit.
II
We now consider First Union’s claim that the court abused its discretion by denying First Union’s motions to open the judgment and its motion to reargue the second motion to open the judgment. We review such claims under the abuse of discretion standard.
“Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Turk v. Silberstein, 48 Conn. App. 223, 225-26, 709 A.2d 578 (1998). “Therefore, the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently. Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 842, 661 A.2d 539 (1995).
A
The court rendered judgment in this action on May 18, 1998. First Union subsequently filed two motions to open the judgment. First Union filed its first motion to open on May 21,1998, to which the plaintiff objected. The first motion to open was to be argued at the short
It is the appellant’s responsibility to provide an adequate record for review. Practice Book § 61-10. First Union provided this court with a signed copy of the transcript of the short calendar hearing, which does not contain an oral memorandum of decision. See Auric Answering Service, Inc. v. Glenayre Electronics, Inc., 54 Conn. App. 86, 88, 733 A.2d 307 (holding that signature of trial court on entire transcript does not satisfy requirements of Practice Book § 64-1), cert. denied, 250 Conn. 926, 738 A.2d 653 (1999). First Union never filed a motion requesting that the trial court articulate the reasons for its decision.
B
Following the court’s denial of the motions to open, First Union filed a motion to reargue, claiming that the court had relied on statements made by the plaintiffs counsel, which misrepresented conversations he had with the partner in the law firm representing First Union. In support of the motion to reargue, First Union attached two affidavits, one from a partner and one from an associate in the firm representing First Union. Both affidavits indicate that the affiants knew of the pending action on May 11, 1998,
The plaintiff objected to the motion to reargue and attached the affidavits from five members of its corporation counsel’s office. All of the affidavits indicate that the partner telephoned an assistant corporation counsel and asked that the motion for strict foreclosure be marked off the May 18, 1998 short calendar. The assistant corporation counsel informed the partner that the plaintiff was going forward with its motion. The court denied the motion to reargue. The record does not contain a transcript of the argument before the court, if any was had, and First Union did not ask the court to articulate its reason for denying the motion to reargue.
The judgment is affirmed and the case is remanded for the purpose of setting new law days.
In this opinion the other judges concurred.
First Union’s formal identity is First Union National Bank, formerly known as First Fidelity Bank, N. A., as custodian and collateral agent for GTL Investments Limited Partnership.
The other defendants in this action are Pan Pacific Development (Connecticut), Inc., the Metropolitan District and Pan Pacific (HTC) Associates Limited Partnership, which are not parties to this appeal.
General Statutes § 12-195h provides: “Any municipality, by resolution of its legislative body, as defined in section 1-1, may assign, for consideration, any and all liens filed by the tax collector to secure unpaid taxes on real property as provided under the provisions of this chapter. The consideration
In a tangential argument to bolster its claim, First Union argues that the court did not have personal jurisdiction over it because the plaintiff failed to give notice of the foreclosure action in the manner prescribed in the parties’ written agreement. At oral argument before us, First Union acknowledged that it waived its personal jurisdiction claim in the trial court. “It is fundamental that jurisdiction over a person can be obtained by waiver.” Pitchell v. Hartford, 247 Conn. 422, 428, 722 A.2d 797 (1999); see United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985) (“[ujnlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver”); see also Stewart-Brownstein v. Casey, 53 Conn. App. 84, 88, 728 A.2d 1130 (1999).
General Statutes § 12-181 provides: “Whenever used in this section, unless the context otherwise requires, ‘municipality’ has the meaning given thereto in section 12-141. The tax collector of any municipality may bring suit for the foreclosure of tax hens in the name of the municipality by which the tax was laid, and all municipalities having tax hens upon the same piece of real estate may join in one complaint for the foreclosure of the same, in which case the amount of the largest unpaid tax shah determine the jurisdiction of the court. If ah municipalities having tax hens upon the same piece of real estate do not join in a foreclosure action, any party to such action may petition the court to cite in any or ah of such municipalities as may be omitted, and the court shah order such municipality or municipalities to appear in such action and be joined in one complaint. The court in which action is commenced shah continue to have jurisdiction thereof and may dispose of such action in the same manner as if ah the municipalities had commenced action by joining in one complaint. If one or more municipalities having one or more tax hens upon the same piece of property are not joined in one action, each of such municipalities shah have the right to petition the court to be made a party plaintiff to such action and have its claims determined in the same action, in which case the same court shah continue to have jurisdiction of the action and shah have the same rights to dispose
In stating the basis of First Union’s argument, we do not suggest that we agree or disagree with its construction of the statute.
First Union raised claims of improper service and lack of personal jurisdiction in its first motion to open. It waived those claims at the short calendar on June 15, 1998.
The transcript in part contains the following colloquy between First Union’s counsel and the court:
“The Court: There’s not much equity on your side, I should say.
“Counsel: Thank you, Your Honor.
“The Corut: I should probably say none. I am going to deny the motion to reopen and vacate the judgment.”
The associate learned of this action from counsel for the named defendant property owner, Pan Pacific Development (Connecticut), Inc., in the course of litigating a separate action brought by First Union to foreclose its tax liens on the premises.