Gibson v. Jefferson Woods Cmty., Inc.

Decision Date03 August 2021
Docket NumberAC 43849
Parties Lilly M. GIBSON v. JEFFERSON WOODS COMMUNITY, INC., et al.
CourtConnecticut Court of Appeals

Joseph S. Elder, Hartford, for the appellant (plaintiff).

Kristen Schultze Greene, Farmington, for the appellee (named defendant).

Kenneth M. Rozich, New Haven, with whom, on the brief, was Kyle R. Barrett, New Haven, for the appellee (defendant Joseph R. Pagliaro).

Elgo, Cradle and DiPentima, Js.

DiPENTIMA, J.

The plaintiff, Lilly M. Gibson, appeals from the judgment of the trial court granting the motion of the defendant Jefferson Woods Community, Inc. (Jefferson Woods),1 to dismiss the action. On appeal, Gibson claims that, in granting Jefferson Woods' motion to dismiss, the court improperly determined that she lacked standing (1) to seek foreclosure and (2) to pursue her claim of unjust enrichment. We disagree and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. Jefferson Woods was the condominium association for the complex that included the condominium unit at issue, unit number 23, located at 23 Monticello Drive in Branford (property). In 2009, the owner of the property, Priscilla B. Taylor, executed a note and mortgage in favor of Marvin Blassingdale in the amount of $150,000, which encumbered the property and which Blassingdale recorded in the Branford land records.

On February 6, 2015, Jefferson Woods recorded a lis pendens on the property in the Branford land records. Jefferson Woods commenced a foreclosure action, Jefferson Woods Community, Inc. v. Taylor , Superior Court, judicial district of New Haven, Docket No. CV-15-6052876-S, against, inter alia, Taylor and Blassingdale in which it sought a judgment of strict foreclosure as to its condominium common charge lien on the property (prior foreclosure action). Jefferson Woods listed in its complaint in that action the prior interests, which included the $150,000 mortgage from Taylor to Blassingdale, as well as subsequent interests. Blassingdale was defaulted for failure to appear. On May 21, 2016, Blassingdale assigned to Gibson all of his rights, title and interest in the $150,000 mortgage note and deed that encumbered the property, which Gibson recorded in the Branford land records on May 26, 2016. The trial court in the prior foreclosure action, Hon. Anthony Avallone , judge trial referee, rendered a judgment of strict foreclosure on April 11, 2016, with law days beginning on May 31, 2016. No party redeemed and no party appealed the judgment of strict foreclosure. In October, 2016, Jefferson Woods sold the property to Joseph R. Pagliaro.

In 2019, Gibson brought the present action in which she sought the foreclosure of the $150,000 mortgage (count one) and damages for unjust enrichment (count two). Jefferson Woods filed a motion to dismiss on the ground that Gibson lacked standing as to both counts of the complaint. The court, Baio, J. , granted the motion, reasoning that Gibson lacked standing to pursue the foreclosure claim because the mortgage had been extinguished in the prior foreclosure action and that she also lacked standing to pursue her unjust enrichment claim. This appeal followed.

At the outset we note the following standards of review applicable to both claims raised on appeal. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. ... [O]ur review of the trial court's ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo. ... When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. ... [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Glastonbury , 132 Conn. App. 218, 221–22, 31 A.3d 429 (2011).

I

Gibson first claims that the court improperly granted Jefferson Woods' motion to dismiss count one of her complaint on the ground that she lacked standing because the mortgage that she sought to foreclose had been extinguished in the prior foreclosure action. She contends that the judgment in the prior foreclosure action is null and void because the statutory jurisdictional prerequisites in General Statutes § 47-258 (m) (1) were not satisfied, thereby causing the trial court in the prior foreclosure action to lack jurisdiction. We disagree.

The mortgage that Gibson sought to foreclose was extinguished by virtue of the prior foreclosure action. In the prior foreclosure action, Jefferson Woods, as the mortgagee, sought to foreclose on its common charge lien on the property. When Blassingdale assigned to Gibson all of his rights, title and interest in the mortgage, those rights, title and interest were subject to Jefferson Woods' lis pendens and, thus, subject to the outcome of the prior foreclosure action. See, e.g., Ghent v. Meadowhaven Condominium, Inc ., 77 Conn. App. 276, 284–85, 823 A.2d 355 (2003) (lis pendens warns third parties that property is in litigation and causes them to be bound by proceedings).

When the law day passed for the mortgage that Blassingdale had assigned to Gibson, her right to redeem the property ended. See Barclays Bank of New York v. Ivler , 20 Conn. App. 163, 166–67, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). Because there was no appellate stay in effect when the law days began to run on May 31, 2016, absolute title to the property transferred to Jefferson Woods as a matter of law after all law days expired. See, e.g., Sovereign Bank v. Licata , 178 Conn. App. 82, 100–101, 172 A.3d 1263 (2017). The final law day was June 6, 2016, and when none of the seven defendants in the prior foreclosure action redeemed, title vested in Jefferson Woods on June 7, 2016.

"Where a foreclosure decree has become absolute by the passing of the law days, the outstanding rights of redemption have been cut off and the title has become unconditional in the [redeeming encumbrancer] .... The mortgagor has no remaining title or interest which he may convey .... Provided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court ... it is not within the power of appellate courts to resuscitate the mortgagor's right of redemption or otherwise to disturb the absolute title of the redeeming encumbrancer." (Citations omitted; emphasis added; internal quotation marks omitted.) Barclays Bank of New York v. Ivler , supra, 20 Conn. App. at 166–67, 565 A.2d 252.

Gibson did not file any motion or an appearance in the prior foreclosure action, nor did she attempt to appeal from the judgment of strict foreclosure. Rather, approximately three years after the conclusion of the prior foreclosure action and after title to the property had vested absolutely in Jefferson Woods, she commenced a separate action in which she collaterally attacked the jurisdiction of the trial court in the prior foreclosure action.

"[F]inal judgments are ... presumptively valid ... and collateral attacks on their validity are disfavored. ... Unless it is entirely invalid and that fact is disclosed by an inspection of the record itself the judgment is invulnerable to indirect assaults upon it. ... [I]t is now well settled that, [u]nless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs .... A collateral attack on a judgment is a procedurally impermissible substitute for an appeal. ... [A]t least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if [s]he did have such an opportunity, whether there are strong policy reasons for giving [her] a second opportunity to do so." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sousa v. Sousa , 322 Conn. 757, 771–72, 143 A.3d 578 (2016).

Gibson argues that the jurisdictional prerequisites to maintaining a foreclosure action on a common charge lien in § 47-258 (m) (1)2 were not satisfied. She contends that "nowhere in [Jefferson Woods'] complaint did [it] allege or claim that it had satisfied the mandatory subject matter jurisdictional requirements set forth in ... § 47-258 (m) (1) allowing it to commence the subject foreclosure action; there being nothing in its complaint alleging that [Jefferson Woods] had made demand for payment in a record and had simultaneously provided a copy of such record to the holder of a security interest described in subdivision (2) of subsection (b) of § 47-258, including Gibson's assignor ... Blassingdale, and that the executive board had either voted to commence a foreclosure action specifically against the subject unit or had adopted a standard policy that provided for foreclosure against that unit." Gibson argues that, because jurisdictional prerequisites were lacking, the judgment in the prior foreclosure action is subject to collateral attack because the trial court in the prior foreclosure action lacked subject matter jurisdiction. We are not...

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    ...restitution of or for property received, retained or appropriated." (Internal quotation marks omitted.) Gibson v. Jefferson Woods Community, Inc. , 206 Conn. App. 303, 314, 260 A.3d 1244, cert. denied, 339 Conn. 911, 261 A.3d 747 (2021). "A right of recovery under the doctrine of unjust enr......
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