Franklin Credit Management Corp. v. Nicholas

• Decision Date: 03 December 2002
• Docket Number: (AC 22186)
• Citation: 812 A.2d 51,73 Conn. App. 830
• Court: Connecticut Court of Appeals
• Parties: FRANKLIN CREDIT MANAGEMENT CORPORATION v. THOMAS J. NICHOLAS ET AL.

73 Conn. App. 830

812 A.2d 51

FRANKLIN CREDIT MANAGEMENT CORPORATION v. THOMAS J. NICHOLAS ET AL.

(AC 22186)

Appellate Court of Connecticut

Argued September 20, 2002

Officially released December 3, 2002

Schaller, Flynn and West, Js. Matthew B. Woods, with whom, on the brief, was David F. Borrino, for the appellant (substitute plaintiff).

Lloyd L. Langhammer, with whom, on the brief, was Richard Pascal, for the appellee (named defendant).

Opinion

WEST, J.

In this mortgage foreclosure action, the substitute plaintiff, Mortgage Electronic Registration Systems, Inc.,¹ appeals from the judgment of the trial court rendered in favor of the defendant Thomas J. Nicholas.² The plaintiff claims that the court (1) lacked personal jurisdiction over the parties pursuant to General Statutes § 51-183b and (2) improperly rendered judgment in favor of the defendant on the ground that the debt previously had been discharged. We affirm the judgment of the trial court.

The court found the following facts. On January 27, 1989, the defendant and his then wife, Ellen C. Brown, mortgaged the premises at 214 Lantern Road, Ledyard, to New London Federal Savings and Loan Association, the plaintiff's predecessor in interest (bank). The note was in the amount of $206,000. Beginning in May, 1991, the defendant and Brown defaulted on their monthly obligation under the note. In that year, the defendant and Brown separated, but the defendant continued to reside at the subject premises.³

In 1994, the bank failed and was taken over eventually by Resolution Trust Corporation (Resolution Trust). At the end of 1994, Brown filed a petition in bankruptcy, listing the subject note as a debt to be discharged. On April 14, 1995, Resolution Trust issued an Internal Revenue Service (IRS) form 1099-C (form 1099-C) to both Brown and the defendant, notifying them that it had discharged the debt under the note. The defendant reported the cancellation of the debt, as indicated on the form 1099-C, in his 1995 income tax returns and incurred tax consequences.

In December, 1995, Franklin Credit Management Corporation (Franklin Credit) purchased the note from Resolution Trust, as part of a bulk transfer. At the time, Resolution Trust apprised Franklin Credit that all of the relevant documents may not be in the loan files and expressly disclaimed all warranties and representations regarding the defendant's mortgage and note prior to their sale. In June, 1998, Franklin Credit commenced a mortgage foreclosure action against the defendant. In response, the defendant filed an answer, special defenses, a claim for setoff and multiple counterclaims, which Franklin Credit thereafter sought to strike. The court, Parker, J., granted the motion to strike, except as it pertained to the defendant's special defense that the debt had been discharged and released pursuant to form 1099-C.

The matter was tried to the court, Hon. D. Michael Hurley, judge trial referee, on January 17 and 19, 2001. The court rendered its judgment in favor of the defendant, concluding that the defendant's debt had been discharged. Franklin Credit filed a motion to set aside the judgment, which the court denied. Franklin Credit appealed. Additional facts will be set forth as necessary.

I

We first consider the plaintiff's claim that the court lacked personal jurisdiction over the parties to render its judgment because its decision was not issued within 120 days of the completion of trial in violation of § 51-183b. We disagree.

The following additional facts are necessary to our resolution of the plaintiff's claim. At the conclusion of evidence, the court directed the parties to submit simultaneous briefs by February 20, 2001. The parties filed their briefs as ordered. On April 11, 2001, the defendant submitted an unsolicited supplemental brief (unsolicited brief), which the court accepted without comment. Franklin Credit did not object to the defendant's unsolicited brief. The court rendered judgment in favor of the defendant on July 12, 2001. On July 23, 2001, Franklin Credit filed a motion to set aside the judgment and for a mistrial on the basis of the court's having failed to render its judgment within 120 days of February 20, 2001.⁴ Furthermore, Franklin Credit argued that the court had not requested or ordered briefs subsequent to February 20, 2001, or requested an extension of the 120 day limit imposed by § 51-183b.⁵ The court denied the motion to set aside the judgment.

After Franklin Credit appealed, it filed a motion for articulation; see Practice Book § 66-5; which the court denied. Franklin Credit filed a motion for review. See Practice Book § 66-6. This court granted the motion for review and ordered the trial court to articulate its decision to deny the motion to set aside. In its articulation, the court noted that it had accepted the defendant's unsolicited brief and that Franklin Credit had not objected to the brief, either in terms of its content or its effect on the timing of the decision. The court articulated that it had utilized the unsolicited brief, at least, in determining when its decision was due. The court cited several opinions from the appellate courts of this state in support of its conclusion that Franklin Credit had waived its right to object to a decision rendered within 120 days of April 11, 2001. See Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1984); Northeast Savings, F.A. v. Scherban, 47 Conn. App. 225, 230-32, 702 A.2d 659 (1997), cert. denied, 244 Conn. 907, 714 A.2d 2 (1998); Ippolito v. Ippolito, 28 Conn. App. 745, 748-50, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992). We conclude that the court properly applied our case law in denying Franklin Credit's motion to set aside.

General Statutes § 51-183b provides in relevant part: "Any ... judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section." (Emphasis added.)

"Section 51-183b applies to all civil causes, and unless the parties waive its provisions, a trial court must render its decision within 120 days of the completion of the trial, which ends with the filing of the briefs when requested." (Internal quotation marks omitted.) Northeast Savings, F.A. v. Scherban, supra, 47 Conn. App. 231. Courts have "held that briefing of the legal issues [is] a component of the judicial gathering of the materials necessary to a well-reasoned decision. In related contexts, completion has been held to encompass the availability of all the elements directly or indirectly to be considered in the rendering of a decision." (Internal quotation marks omitted.) Id.

"Cases interpreting the statute have established that the defect in a late judgment is that it implicates the trial court's power to continue to exercise jurisdiction over the parties before it.... We have characterized a late judgment as voidable rather than as void ... and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties.... Thus, if both parties simultaneously expressly consent to a late judgment, either before the judgment is [rendered], or immediately thereafter, the judgment is valid and binding upon both parties, despite its lateness. Express consent, however, is not required. If a late judgment has been rendered and the parties fail to object seasonably, consent may be implied.... Because consent may be implied from a failure to object seasonably after a delayed judgment has been rendered, these cases do not support the [notion] that § 51-183b invariably requires the prior consent of both parties in order to waive the time limits the statute imposes.

"These implied consent cases establish that an unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object. It is for this reason that a late judgment is merely voidable, and not void." (Emphasis in original; internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 341-42, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). This court has recognized that waiver of the 120 day requirement need not be express and may be implied from a party's conduct. See Hargrove v. Zoning Board of Appeals, 64 Conn. App. 251, 254, 779 A.2d 856 (2001), citing Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App., 89, 96-97, 669 A.2d 620, cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996). "Whether a waiver has occurred is a factual question, reviewable under the clearly erroneous standard." Ridgefield v. Eppoliti Realty Co., supra, 71 Conn. App. 340. "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) L & R Realty v. Connecticut National Bank, 246 Conn. 1, 8-9, 715 A.2d 748 (1998).

The facts of this case are controlled by Ippolito v. Ippolito, supra, 28 Conn. App. 748-50. Here, as in Ippolito, one of the parties submitted an unsolicited brief subsequent to the time the court established for the submission of briefs after the close of evidence. In both cases, the opposing party did not object to the unsolicited brief or seek to strike the brief. Neither of the courts returned the briefs or asked the parties to agree to extend the time in which the decisions were to be rendered. In Ippolito, the failure of the opposing party to file an objection to the unsolicited brief constituted...