Opinion
CV156023248S
01-11-2019
WELLS FARGO BANK v. Kasie C. MUNSON
UNPUBLISHED OPINION
Cosgrove, J.
FACTS
Before the court are Chicago Title Insurance Company’s (Chicago Title) motion to substitute itself as the cross claim plaintiff in place of Kasie C. Munson (Munson) (# 138) and the motion to cite in additional party (Dorothy Bellaria) (# 141).
The following procedural history is relevant to the court’s resolution of these motions. On November 2, 2011, Wells Fargo Bank, National Association, Successor in interest by merger with Wachovia Bank, National Association (Wells Fargo) obtained a judgment against Innonet, LLC and Michael P. Bellaria. Wells Fargo alleges that because the judgment remained wholly unsatisfied, a judgment lien was placed upon real estate then owned by Michael P. Bellaria and Dorothy Bellaria known as 12 Riverbend Road, Old Lyme, Connecticut (the property) on November 17, 2011. On September 6, 2013, Michael P. Bellaria and Dorothy Bellaria conveyed the property by warranty deed to Munson.
On March 6, 2015, the plaintiff, Wells Fargo, commenced the relevant action seeking foreclosure of its judgment lien recorded on November 18, 2011 on the property now owned by the defendant, Munson. Wells Fargo also named Michael P. Bellaria as a defendant in the action. On May 5, 2015, Munson filed two cross claims against Michael P. Bellaria and subsequently amended the cross claims on July 23, 2015. Munson, however, failed to pay the court fees as required by General Statutes § 52-259(j). Wells Fargo withdrew the action on March 23, 2017 in accordance with General Statutes § 52-80.
Section 52-259(j) provides in relevant part: "There shall be paid to the clerk of the Superior Court a fee of two hundred five dollars at the time any ... cross complaint ... is filed."
Section 52-80 provides in relevant part: "The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof."
Sixteen months later, on July 13, 2018, Chicago Title filed this motion to substitute. Chicago Title alleges that in connection with the purchase of the property, Chicago Title issued an owner’s policy of title insurance to Munson which insured that fee simple title in the property was vested in Munson. The policy insured Munson from actual loss resulting from any encumbrances on the title. On November 6, 2014, after learning that the judgment lien had not been released and discharged from the property, Munson made a claim under the policy that Chicago Title was required to pay. Chicago Title argues that pursuant to the policy, it is subrogated to the rights of Munson against Michael P. Bellaria and Dorothy Bellaria, for damages sustained as a result of the failure of Michael P. Bellaria and Dorothy Bellaria to secure a release of the judgment lien from the land records. Further, Chicago Title argues that it must be substituted as the cross claim plaintiff in the place of Munson. On August 8, 2018, the court, Calmar J., ordered (# 138.01) that the motion to substitute would "not be considered until payment for the cross complaint is provided." On August 24, 2018, Michael P. Bellaria filed an objection to Chicago Title’s motion to substitute.
DISCUSSION
The decision whether to restore a case to the docket invokes the court’s discretionary authority. Sicaras v. Hartford, 44 Conn.App. 771, 779, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). "Withdrawals are analogous to final judgments ... Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket." (Internal quotation marks omitted.) Id., 775-76. "[T]he motion to restore a case to the docket is the vehicle to open a withdrawal ..." (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 196, 884 A.2d 981 (2005).
General Statutes § 52-212a, which provides that civil judgments may only be opened or set aside within four months of the date they were rendered, "is applicable not only to the opening of a case that has proceeded to judgment but also to the restoration of a withdrawn case." Id. Accordingly, "a motion to restore a withdrawn case is seasonable only if it is filed within four months of the withdrawal." Palumbo v. Barbadimos, 163 Conn.App. 100, 116 n.15, 134 A.3d 696 (2016). Our appellate courts, however, have interpreted § 52-212a "as preserving the common-law authority of a court to open a judgment after the four-month period." Nelson v. Charlesworth, 82 Conn.App. 710, 713, 846 A.2d 923 (2004). Thus, courts have the power "independent of statutory provisions authorizing the opening of judgments, to vacate [or open] any judgment obtained by fraud, duress or mutual mistake." (Internal quotation marks omitted.) Simmons v. Weiss, 176 Conn.App. 94, 99, 168 A.3d 617 (2017).
Section 52-212a provides in relevant part: "Unless 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."
In the present case, Michael P. Bellaria objects to Chicago Title’s motion to substitute on the ground that the court lacks jurisdiction to substitute a party for a defendant where the action has been withdrawn. Michael P. Bellaria argues that because this action was withdrawn prior to any court fee being paid to file a cross claim, there was no viable cross claim in the pleadings of the case when the action was withdrawn. Relying upon VanMeclenberg v. Pan American World Airways, Inc., 196 Conn. 517, 519 (1985), the defendant argues that the Munson cross claim was not effectively filed until the required cross claim filing fee was paid. At the time the fee was paid, there was no action pending as Munson had not objected to the withdrawal of the action in March of 2017. In response, Chicago Title argues that the court should grant the motion to substitute because our Practice Book § 1-8 requires the rules to advance justice and to be interpreted liberally and because the cross claims were filed with the court prior to the filing of the withdrawal of the action by Wells Fargo.
Practice Book § 1-8 provides: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
The court is of the opinion that there was no case pending at the time Chicago Title perfected the Munson cross claim by paying the filing fee. See VanMeclenberg supra . This court has no jurisdiction to grant Chicago Title’s motion to substitute party. Further, Chicago Title has not filed a motion to restore, but instead has filed a motion to substitute. In Joblin v. LaBow, 33 Conn.App. 365, 367, 635 A.2d 874 (1993), cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994), the Appellate Court held that "[w]here judgment has been rendered ... substitution is unavailable unless the judgment is opened." See also Bank of Stamford v. Schlesinger, 160 Conn.App. 32, 44 n.9, 123 A.3d 209 (2015). As a motion to restore may not be filed except within four months of the withdrawal, this court would not have the authority to restore the case unless one of the exceptions to the four-month period was applicable. See Nelson v. Charlesworth, supra, 82 Conn.App. 713.
The motion to cite an additional party (# 141) must also fail as there is no action pending within which to consider the motion.
Chicago Title’s motion to substitute and motion to cite additional party are denied.