88 Conn. App. 592 | Conn. App. Ct. | 2005
Opinion
The named defendant, Barry S. Schwartz,
The following facts and procedural history are relevant to our resolution of the defendant’s claim. In 1992, the plaintiff initiated this action against the defendant and Creative Food and Beverage, Inc. (Creative Food), to obtain a judgment of strict foreclosure of two $100,000 mortgages that he held on their properties.
The court, on August 9, 1999, granted the plaintiffs motion for a deficiency judgment against the defendant, finding that the mortgaged properties were not redeemed and that title to the properties vested in the plaintiff on November 19, 1997. The court determined that the defendant’s debt to the plaintiff amounted to $309,206.11 and that the subject properties had a value set forth in the calculations accompanying the plaintiffs affidavit of debt. A deficiency judgment was rendered in favor of the plaintiff in the amount of $90,177.11. On November 19, 2002, approximately five years after the deficiency judgment was originally rendered, the plain
I
The defendant claims that the court improperly granted the plaintiffs motion to correct the error in the deficiency judgment. Specifically, the defendant contends that the mistake was not a clerical error, and, therefore, the court had no jurisdiction to open the judgment beyond four months from the date of the original deficiency judgment.
Our Supreme Court has explained that “[t]here is a distinction between corrections [of judgments] that change the substance of a court’s disposition and corrections that merely remedy clerical errors. . . . [T]he distinction [is] that mere clerical errors may be corrected at any time even after the end of the term. . . . A clerical error does not challenge the court’s ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court. ... In other words, it is clerical error if the judgment as recorded fails to agree with the judgment in fact rendered .... Thus, a motion to correct properly is granted when the moving party demonstrates that the recorded judgment is inconsistent with the actual judgment. . . . A finding of an inconsistency between the recorded judgment and the actual judgment necessarily requires that the actual judgment be unambiguous and clearly ascertainable.” (Citations omitted; internal quotation marks omitted.) Id., 326. We find, as the trial court did, that
The incorrect calculation of the deficiency judgment here is almost identical to the error at issue in Federal National Mortgage Assn. v. Dicioccio, 51 Conn. App. 343, 721 A.2d 569 (1998), which this court deemed clerical and, therefore, subject to correction beyond the four month period. In Federal National Mortgage Assn., we reversed the judgment of the court and held that the correction of a mathematical error in the calculation of the debt owed to the plaintiff was the correction of a clerical error. Id., 345. Instead of adding escrow advances to the debt as it should have, the court subtracted the advances from the amount owed by the defendant. Id., 344.
In this case, the amount of the deficiency judgment owed by the defendant to the plaintiff did not reflect the actual amount owed. “A court may correct a clerical error at any time, even after the expiration of the four month period [set forth in General Statutes § 52-212a].” (Internal quotation marks omitted.) Cusano v. Burgundy Chevrolet, Inc., 55 Conn. App. 655, 659, 740 A.2d 447 (1999), cert. denied, 252 Conn. 942, 747 A.2d 519 (2000). The defendant cannot escape the full amount for which he is liable to the plaintiff because of a simple mistake made in the mathematical calculation of the deficiency judgment. The court properly granted the motion to correct because the mistake was a clerical error, which could be corrected by the court at any time, and the plaintiff did not seek to alter the substance of the judgment.
II
The defendant also claims that once the court opened the judgment to correct a clerical error, it opened the judgment for all purposes. We disagree. In this case, the defendant wishes to contest the sufficiency of the evidence, i.e., the sufficiency of the evidence with respect to the value of the Trumbull property as of the date of entry of the judgment of strict foreclosure. The value of the Trumbull property, necessary to establish the deficiency, is not a clerical error. See, e.g., Ravizza v. Waldie, 3 Conn. App. 491, 493-94, 490 A.2d 90 (1985) (holding that this court could not correct discrepancy between a description of land in trial court’s memorandum of decision and description in diagram because such determination would require this court to retry issues in dispute and judgment reflected trial court’s decision). The value of the Trumbull property should have been challenged on direct appeal. See id., 494 (“the defendants’ argument is that the trial court could not have reached the conclusion that it did reach on the basis of the pleadings and the record . . . thus [the claimed error] should have been raised by an appeal from the judgment”). It was not. Milazzo v. Schwartz,
The judgment is affirmed.
In this opinion the other judges concurred.
Both Barry S. Schwartz and Creative Food and Beverage, Inc., were defendants in the original strict foreclosure action. Only Schwartz has appealed, and we refer to him in this opinion as the defendant.
The plaintiff held mortgages on the defendant’s residence in Trumbull and on property in Bridgeport owned by the defendant and Creative Food.
General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law ... 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 . . . .” (Emphasis added.) Our Supreme Court has explained that “the substantive provisions of § 52-212a are fully enforceable as a limitation on the authority of the trial court to grant relief from a judgment after the passage of four months. Thus construed, § 52-212a operates as a constraint, not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it. . . . [A] trial court judgment rendered after the expiration of an applicable statutory time limitation is not void for want of jurisdiction of the court to render it . . . but . . .
The defendant argues that the negligence of the plaintiffs attorney does not provide sufficient grounds to render inapplicable the four month time limit on a court’s authority to modify judgments. The defendant contends that the plaintiffs attorney negligently presented his client’s case to the court and negligently prepared the deficiency judgment calculations, negligence, the defendant claims, that led to the error the plaintiff now seeks to correct. The defendant, however, cites no authority supporting the proposition that a court cannot correct a clerical error in its judgment later than
The prior appeal from the judgment of strict foreclosure taken by the defendant raised three issues: (1) whether the statute of frauds applied to the unsigned lease for the Bridgeport property; (2) whether the defendant was estopped from pursuing certain special defenses and counterclaims against the plaintiff; and (3) whether the plaintiff could be awarded interest. Milazzo v. Schwartz, supra, 44 Conn. App. 403. The sufficiency of the evidence with respect to the value of the Trumbull property was never raised.