Society for Sav. v. Chestnut Estates, Inc.

• Decision Date: 06 February 1979
• Citation: 176 Conn. 563,409 A.2d 1020
• Court: Connecticut Supreme Court
• Parties: SOCIETY FOR SAVINGS v. CHESTNUT ESTATES, INC., et al.

Page 1020

409 A.2d 1020

176 Conn. 563

SOCIETY FOR SAVINGS v. CHESTNUT ESTATES, INC., et al.

Supreme Court of Connecticut.

Argued Oct. 19, 1978.

Decided Feb. 6, 1979.

Richard P. Weinstein, Manchester, for appellant (defendant Vincent osowiecki).

I. Milton Widem, Hartford, for appellee (plaintiff).

Before LOISELLE, BOGDANSKI, LONGO, SPEZIALE and PETERS, JJ.

SPEZIALE, Associate Justice.

The principal issue on this appeal is whether § 49-14 ¹ of the General Statutes, Connecticut's deficiency judgment statute, is unconstitutional because it fails to safeguard a person's constitutional right not to be deprived of his property without due process of law. We now decide that § 49-14 of the General Statutes is unconstitutional because it does not comply with the procedural due process of law requirements of the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution.

This appeal presents an attack by the defendant Vincent Osowiecki on the constitutionality of General Statutes § 49-14. Osowiecki, who cosigned a mortgage note with the defendant Chestnut Estates, Inc., has appealed the deficiency judgment rendered for the plaintiff-mortgagee, Society for Savings, claiming that the procedure set out in § 49-14 fails to satisfy the requirements of due process under the state and federal constitutions. Conn.Const., art. 1, § 10; U.S.Const., amend. XIV, § 1.

On September 22, 1976, the plaintiff brought this action against the defendants Chestnut Estates, Inc., Vincent Osowiecki, and Westwood Park, Inc., claiming, inter alia, strict foreclosure of a mortgage on forty-one parcels of land, with buildings and improvements, located in Tolland. On November 5, 1976, the plaintiff filed its motion for judgment by strict foreclosure and for appointment of appraisers pursuant to § 49-14. The defendants filed no plea or answer and the court found for the plaintiff in the sum of $231,316.62, including $1500 in attorney's fees. The law day was set for December 14, 1976, by which time the defendants were to pay the sum owed, with interest from November 12, 1976, and costs of the suit taxed at $738.10, failing which their equity of redemption would be foreclosed.

Pursuant to § 49-14, the plaintiff had moved for appointment of three disinterested appraisers to return their written report of appraisal within ten days after the time limit for redemption had expired. The defendant Osowiecki objected to that motion on the ground that the statute is unconstitutional because it does not provide him with any meaningful hearing during which he can give testimony or present evidence or testimony of third persons; it fails to provide a proper mechanism for the selection of appraisers; the appraisers lack any authority whatsoever to conduct a meaningful hearing to determine the value of the subject property; and it fails to provide him with an opportunity to examine or cross-examine the bases upon which the premises are to be valued and upon which the appraisers will base their conclusion and their appraisal price. The court appointed three appraisers, who filed their report in which they found the value of the property to be $152,000. The defendant Osowiecki filed an objection to the report, citing, inter alia, the statute's failure to provide for notice, hearing, and cross-examination. He also complained that the report of the appraisers lacked findings of fact upon which they based their conclusion as to the value of the property. The plaintiff thereafter moved for a deficiency judgment in the amount of $88,614.83, plus reasonable appraisal fees. The defendant Osowiecki objected to the motion for deficiency judgment for the same reasons cited in his objection to the report of the appraisers, the plaintiff demurred to the objection, and the court sustained the plaintiff's demurrer and denied Osowiecki's objection, finding no due process violation and, moreover, finding that the defendant had "waived his right to due process protection when he refused to speak" with respect to the appointment of the appraisers. The motion for deficiency judgment was then granted and judgment was rendered for $90,697.42, plus costs of appraisal in the amount of $450. Subsequently the judgment was opened to allow $9500 in attorney's fees in a supplemental judgment. Osowiecki, hereinafter the defendant, appealed from the deficiency judgment.

The assignments of error that have been briefed and argued by the defendant are that the court erred: (1) in upholding the constitutionality of § 49-14; and (2) by deciding that the refusal of the defendant to participate in the nomination of the appraisers constituted "a waiver of his constitutional rights."

I

We first consider the waiver issue. The trial court (Wright, J.) concluded that not only was the procedural process provided adequate, but that the defendant's refusal to participate in the appointment of the appraisers constituted a waiver of his due process rights. The plaintiff itself argues on appeal, however, that waiver occurred as a result of the defendant's Participation in the strict foreclosure proceedings. Concerning the right to raise the issue of constitutionality we have ruled that "a party cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality. Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300; Strain v. Zoning Board of Appeals, 137 Conn. 36, 38, 74 A.2d 462." Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328, 334 (1955); J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534 (1968).

In this case, the plaintiff maintains that the defendant's participation in the strict foreclosure proceedings precludes a challenge to the constitutionality of § 49-14. ² This claim is without merit for two reasons. First, the statute under consideration is solely a provision for appraisal and deficiency judgment proceedings Following foreclosure. The initial determination of strict foreclosure has already taken place, as it must before the statute comes into play. Although no longer a separate proceeding in equity, ³ strict foreclosure is a common-law, nonstatutory process upon which § 49-14 depends, but from which it is separate. Therefore, the defendant's participation in the strict foreclosure stage did not constitute a waiver of the right to challenge the constitutionality of § 49-14. Second, the defendant timely and continuously voiced his constitutional objection. ⁴ He has not waived his right to challenge the statute; quite the contrary, he has intentionally avoided taking upon himself the benefits and burdens of acquiescence. J & M Realty Co. v. Norwalk, supra; cf. Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974). The constitutional issue is therefore squarely before this court on appeal.

II

The defendant claims that § 49-14 violates the due process clause of the constitution of the United States (amend. XIV, § 1) and of the constitution of Connecticut (art. 1, § 10). ⁵ "We are not unmindful of the presumption of constitutionality which attaches to a statutory enactment and the burden which rests upon a party asserting its invalidity to establish not only that it is unconstitutional beyond a reasonable doubt but that its effect or impact on him adversely affects a constitutionally protected right which he has. Lublin v. Brown, 168 Conn. 212, 219, 362 A.2d 769; Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49." Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778, 785 (1975), vacated, 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393 (1976), cert. denied, 429 U.S. 889, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976); New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 148, 384 A.2d 337 (1977); Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972); Amsel v. Brooks, 141 Conn. 288, 294, 106 A.2d 152 (1954). "Furthermore, courts must, if possible, construe a law so that it is effective. DeMond v. Liquor Control Commission, 129 Conn. 642, 645, 30 A.2d 547; Connecticut Light & Power Co. v. Southbury, 95 Conn. 242, 247, 111 A. 363; Balch v. Chaffee, 73 Conn. 318, 320, 47 A. 327. It is to be presumed that legislatures do not deliberately enact ineffective and unconstitutional laws. Antman v. Connecticut Light & Power Co., 117 Conn. 230, 237, 167 A. 715; Sage-Allen Co. v. Wheeler, 119 Conn. 667, 679, 179 A. 195; State ex rel. Rourke v. Barbieri, 139 Conn. 203, 208, 91 A.2d 773." Amsel v. Brooks, supra, 141 Conn. 295, 106 A.2d 156. Moreover, this particular statute was upheld against a similar constitutional attack only fourteen years ago; Buck v. Morris Park, Inc., 153 Conn. 290, 216 A.2d 187 (1965), appeal dismissed, 385 U.S. 2, 87 S.Ct. 33, 17 L.Ed.2d 2 (1966); ⁶ and, a court should overrule its own precedents for only the most compelling reasons. Herald Publishing Co. v. Bill 142 Conn. 53, 62, 111 A.2d 4 (1955). Nevertheless, in reviewing both the statute and a decision of this court upholding it, we cannot allow such important considerations to impair the rights of persons under our federal and state constitutions. "It is fundamental that property cannot be taken without procedural due process as guaranteed by the fourteenth amendment to the constitution of the United States and article first, § 10, of the constitution of Connecticut." Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 376, 362 A.2d 778, 781 (1975).

We must now review and reexamine Buck in the light of recent expansions of procedural due process which touch upon both the right that is affected and the process that is due. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (19...