Town of Brookfield v. Candlewood Shores Estates, Inc., 12702

Decision Date12 August 1986
Docket NumberNo. 12702,12702
Citation201 Conn. 1,513 A.2d 1218
CourtConnecticut Supreme Court

David S. Grossman, Brookfield, for appellant (defendant).

Paula Flanagan, Danbury, for appellee (plaintiff).


ARTHUR H. HEALEY, Associate Justice.

In June, 1984, the plaintiff town of Brookfield, a municipal corporation, commenced suit against the defendant Candlewood Shores Estates, Inc. for the collection of real and personal property taxes, interest, lien fees and attorney's fees. On October 19, 1984, the defendant filed an answer including several special defenses as well as a counterclaim. On January 10, 1985, the plaintiff filed its motion for summary judgment "on the issue of liability and damages" and attached to it two affidavits and certain other materials. At that time, however, the plaintiff had not filed its answer to the defendant's counterclaim. On January 25, 1985, the defendant filed its counteraffidavit and other attached materials opposing the plaintiff's motion for summary judgment. The plaintiff's motion was set down on the short calendar of January 28, 1985, as a nonarguable matter. 1 On that date, and apparently before the 10 a.m. commencement of the short calendar, the plaintiff filed its reply to the counterclaim. The court, J. Healey, J., granted the plaintiff's motion on January 28, 1985. The court did not file a written memorandum of decision. The judgment awarded the plaintiff $227,429.28 in principal, $3,500 in attorney's fees and $329.20 in costs and ordered that interest continue to accrue at the statutory rate pursuant to General Statutes § 12-193.

The defendant appealed, claiming error in the granting of the summary judgment because: (1) the plaintiff filed its motion for summary judgment before the pleadings were closed in violation of Practice Book § 379; 2 (2) the affidavit of Brookfield's tax collector filed with its motion included evidence that violated the best evidence rule and would be inadmissible at a trial and was therefore in violation of Practice Book § 381; 3 (3) a substantial portion of the debt claimed by the plaintiff is accrued interest which should not have been relied upon by the trial court because it was not supported by any statutory or computational authority or proof; and (4) there exists a genuine issue of material fact raised by the defendant in its special defenses and counterclaim and, therefore, the plaintiff was not entitled to summary judgment as a matter of law. In oral argument before us, the defendant withdrew all of the issues it had raised, including the claim that the counter-affidavit was sufficient, except those that claimed that the plaintiff's motion was filed in violation of Practice Book §§ 379 and 381 and the so-called best evidence rule. We find error only in the award of attorney's fees.

We turn to the defendant's initial claim that it was error for the trial court to have granted summary judgment to Brookfield because its motion had been filed before the pleadings were closed in violation of Practice Book § 379. This claim lacks merit. Our rules of practice provide that "any party may move for a summary judgment, provided that the pleadings are closed as between the parties to that motion...." Practice Book § 379. The pleadings were not closed when the plaintiff moved for summary judgment by filing its motion on December 10, 1985. There was in that sense a violation of the rule. We cannot, however, agree with the defendant that this required that the plaintiff's motion "should not have been considered or granted." Without condoning any such violation, we point out that when the plaintiff's motion was filed, the court already had jurisdiction not only of the subject matter and the process but also of all the parties to this motion. See Telesco v. Telesco, 187 Conn. 715, 719-20, 447 A.2d 752 (1982); LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976). This procedural failure by the plaintiff did not, in any fashion, have the effect of terminating or ousting the jurisdiction of the trial court. At most, it made the trial court's action in granting the summary judgment technically erroneous but that error was rendered harmless by later circumstances, including the filing of the answer to the counterclaim, the lack of actual prejudice to the defendant, and the presumed consideration by the trial court, required under the circumstances, of the closed pleadings in deciding the plaintiff's motion. See French v. Brown, 424 S.W.2d 893, 894 (Tex.1967) (no jurisdictional flaw where court granted summary judgment prior to expiration of ten-day period after filing motion). Harmless error analysis has been employed both under the Federal Rules of Civil Procedure and state rules where, in the absence of prejudice, summary judgment rules have not been followed. 4

In oral argument before this court, the defendant argued that because the plaintiff did not file its answer to the defendant's counterclaim until the morning of January 25, 1985, shortly before the opening of the short calendar session on which the plaintiff's summary judgment motion appeared, it was not known whether the court had knowledge that the answer had been filed, and thus may not have considered it in deciding the summary judgment motion. We note, however, that the judgment file which is "the proper evidence of the rendition of the judgment and its terms"; State v. Lindsay, 109 Conn. 239, 243, 146 A. 290 (1929); Brown v. Cray, 88 Conn. 141, 146, 89 A. 1123 (1914); shows that judgment was rendered not on January 25, 1985, the date of the hearing, but on January 28, 1985.

The clerk of the Superior Court is a public officer of the state judicial department. See Morgan v. Schmid, 27 Conn.Sup. 481, 244 A.2d 824 (1965). The receipt, filing, recording and processing of pleadings in a pending matter are encompassed by his general duties under the statutes. See, e.g., General Statutes §§ 51-52, 51-52a. 5 Public officers, acting in their official capacity, are presumed, until the contrary appears, to have acted legally and properly. Connecticut State Employees Assn. v. Board of Trustees, 165 Conn. 757, 766, 345 A.2d 36 (1974); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 568, 345 A.2d 520 (1973); see State v. Main, 69 Conn. 123, 140, 37 A. 80 (1897). This presumption has been held to apply to clerks of court. See James v. Municipal Court, 45 Cal.App.3d 557, 560, 119 Cal.Rptr. 606 (1975); Palmer v. Emery, 91 Ill.App. 207, 214 (1900); Moreno v. Vietor, 261 Iowa 806, 813, 156 N.W.2d 305 (1968); Rim Group v. Mountain Mesa Uranium Corporation, 78 Wyo. 204, 210, 321 P.2d 229 (1958); 14 C.J.S., Clerks of Courts 46. It can therefore be presumed, since nothing on the record appears to the contrary, that the clerk took the necessary steps to make the plaintiff's answer to the defendant's counterclaim available to the judge who acted on the summary judgment motion for his consideration in passing on that motion.

In addition, as to judges and courts, under the law of evidence, "it is presumed, unless the contrary appears, that judicial acts and duties have been duly and regularly performed, the presumption of regularity attending the acts of public officers being applicable to judges and courts and their officers...." 29 Am.Jur.2d, Evidence § 170; Houston v. Hennessey, 534 S.W.2d 52 (Mo.App.1975); Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981); see Laundry, Dry Cleaning, Dye House Workers Union, Local 3008 v. Laundry Workers International Union, 4 Wis.2d 542, 556, 91 N.W.2d 320 (1958); see also Cornett v. Williams, 87 U.S. (20 Wall) 226, 249-50, 22 L.Ed. 254 (1874); 29 Am.Jur.2d, Evidence § 171. The general rule that a judgment, rendered by a court with jurisdiction, is presumed to be valid and not clearly erroneous until so demonstrated raises a presumption that the rendering court acted only after due consideration, in conformity with the law and in accordance with its duty. See Livingston v. Moore, 32 U.S. (7 Pet.) 469, 546, 8 L.Ed. 751 (1833); Ennis v. Giblin, 147 Fla. 113, 115-16, 2 So.2d 382 (1941); Diehl v. Heimann, 248 Wis. 17, 20, 20 N.W.2d 556 (1945); 46 Am.Jur.2d, Judgments § 28. We have said that "[a] judgment is entitled to reasonable presumptions in support of its validity." Kelly, Admin. v. New Haven Steamboat Co., 75 Conn. 42, 47, 52 A. 261 (1902); Miller v. Bridgeport Herald Corporation, 134 Conn. 198, 202, 56 A.2d 171 (1947). The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error. See, e.g., General Electric Supply Co. v. SNETCO, 185 Conn. 583, 603, 441 A.2d 581 (1981). The record before us is completely barren of any indication that the summary judgment rendered by the court below was infirm because of the defect suggested by the defendant on this branch of its claim.

We turn now to the defendant's claim that the Brookfield tax collector's affidavit supporting the summary judgment motion included, in violation of Practice Book § 381 and the best evidence rule, evidence that would have been inadmissible at trial and, therefore, should not have been considered by the trial court in deciding the motion. This claim is without merit.

The plaintiff attached to its motion for summary judgment, inter alia, the affidavit of Theresa York, the Brookfield tax collector, dated December 11, 1984. York's affidavit, after setting out that she was "duly sworn [and] depose[d], ..." recites that she was the tax collector of Brookfield and "as such, [was] familiar with the subject matter of [this] suit." It also recites that the defendant is "presently the owner of each of those lots in Exhibit A to [the] Plaintiff's Complaint" 6 with the exception...

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