Opinion
(8442)
The defendant appealed to this court from the trial court's denial of his motion to vacate the judgment ordering strict foreclosure of a judgment lien on certain of his real property. Held: 1. The defendant could not prevail on his claim that because his appeal from the underlying judgment was pending, the trial court lacked subject matter jurisdiction to order foreclosure of the lien securing that judgment; the record indicated that five days before the trial court's judgment of strict foreclosure the Connecticut Supreme Court had denied the defendant's petition for certification to appeal this court's dismissal of his appeal from the underlying judgment. 2. The defendant's challenge to the trial court's valuation of the property was unavailing. 3. There was no basis for the defendant's claim that the trial court should have ordered a foreclosure by sale, the defendant never having requested a foreclosure by sale. 4. The trial court did not abuse its discretion in refusing to restore the defendant's counterclaim which had been nonsuited; the defendant's own negligence in failing to appear was the cause of that nonsuit. 5. The trial court did not abuse its discretion in refusing to open the judgment of strict foreclosure.
Argued September 27, 1990
Decision released April 23, 1991
Action to foreclose a judgment lien filed against certain of the defendant's real property, and for other relief, brought to the superior Court in the judicial district of New London, where the defendant filed a counterclaim; thereafter, the matter was tried to the court, R. O'Connell, J; judgment of strict foreclosure; subsequently, the court, Austen J., denied the defendant' motion to vacate the judgments and the defendant appealed to this court. Affirmed; remanded with direction.
Paul H. Burnham, for the appellant (defendant)
Lloyd L. Langhammer, for the appellee (plaintiff)
The defendant appeals from the trial court's denial of his motion to vacate a judgment of strict foreclosure rendered on May 30, 1989, pertaining to a tract of land located in the town of Groton.
The following facts are not in dispute. The defendant is the partial owner of a tract of unimproved land on Poquonnock Road and Rainville Avenue in Groton. The property was attached by the plaintiff on or about June 7, 1982. On September 29, 1987, the plaintiff obtained a judgment against the defendant in the amount of $59,001. A judgment lien was filed on October 8, 1987, and the plaintiff moved to foreclose the lien by a writ dated April 6, 1988. On January 18, 1989, the plaintiff filed a motion for judgment of strict foreclosure that was rendered by the trial court on May 30, 1989. No appeal was taken from this judgment. On August 1, 1989, the defendant filed a motion to vacate the judgment of strict foreclosure that was denied on September 5, 1989. This appeal followed.
The defendant claims that the trial court should have granted his motion to vacate because the trial court lacked jurisdiction, abused its discretion concerning the valuation of the property, should have ordered foreclosure by sale rather than strict foreclosure, and should have granted the defendant's motion to restore his counterclaim. We disagree.
Whether pursuant to the common law or a statute, the trial court's granting or refusing an application to open a judgment is generally within the court's discretion and will not be disturbed on appeal unless such discretion has been clearly abused. General Statutes 49-15; Hartford Federal Savings Loan Assn. v. Stage Harbor Corporation, 181 Conn. 141, 143, 434 A.2d 341 (1980).
General Statutes 49-15 provides: "Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer."
The defendant's claim that the trial court lacked subject matter jurisdiction on May 30, 1989, was based on a then pending appeal from the judgment underlying the lien at issue. The record indicates, however, that the appeal was dismissed by this court on January 30, 1989, with certification denied by the Connecticut Supreme Court on May 25, 1989. Groton v. Johl, 212 Conn. 801, 560 A.2d 984 (1989). That decision was rendered prior to the trial court's judgment of strict foreclosure. Thus, the trial court had subject matter jurisdiction. See Practice Book 4050.
The defendant next claims that the trial court abused its discretion by refusing to reconsider the finding of value made in connection with the judgment of foreclosure rendered on May 30, 1989. That claim, however, would have us retry the evidence of valuation presented to the trial court. The function of an appellate court is to review, not to retry, the proceedings of the trial court. We cannot retry the facts or pass on the credibility of the witnesses concerning the property's value. Licari v. Blackwelder, 14 Conn. App. 46, 51, 539 A.2d 609, cert. denied, 208 Conn. 803, 545 A.2d 1100 (1988). Thus, the trial court's findings must stand.
The defendant also claims that the trial court abused its discretion in not ordering a foreclosure by sale. The plaintiff filed a motion for a judgment of strict foreclosure on January 18, 1989. The record discloses that the defendant never made any claim for foreclosure by sale, and in fact he suggested a law day of August 1, 1989, at the hearing of April 17, 1989. Thus, the defendant's claim is without basis.
Finally, the defendant argues that the trial court never acted on his motion to restore his counterclaim. On December 6, 1988, the trial court ordered the defendant's counterclaim to be nonsuited and a default entered for the plaintiff on the complaint because the defendant failed to appear at a pretrial conference. "`The denial of . . . relief to a party which has suffered a default judgment by his failure to defend properly should not be held an abuse of discretion where the failure to assert a defense was the result of the moving party's own negligence.'" (Citations omitted.) Hartford Federal Savings Loan Assn. v. Stage Harbor Corporation, supra, 143-44. Here, the defendant's own negligence in failing to appear was the cause of the nonsuit entered for the plaintiff.
After reviewing the present circumstances and the record before us, we cannot say that the trial court abused its discretion in refusing to open the judgment of strict foreclosure.