William G. Major Const. Co. v. DeMichely

• Decision Date: 21 May 1974
• Citation: 166 Conn. 368,349 A.2d 827
• Court: Connecticut Supreme Court
• Parties: WILLIAN G. MAJOR CONSTRUCTION COMPANY v. John DeMICHELY et al.

Page 827

349 A.2d 827

166 Conn. 368

WILLIAN G. MAJOR CONSTRUCTION COMPANY v. John DeMICHELY et al.

Supreme Court of Connecticut.

May 21, 1974.

Raymond F. Ross, Bridgeport, for appellant (named defedant).

Melvin J. Silverman, Norwalk, with whom, on the brief, was Jules Lang, Norwalk, for appellee (plaintiff).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

BOGDANSKI, Associate Justice.

This appeal is from an action to foreclose a mechanic's lien brought by the plaintiff, The William G. Major Construction Company, against the defendant John DeMichely. The trial court ordered a default and strict foreclosure on January 13, 1971. On June 18, 1971, the court opened the judgment and substituted a judgment of foreclosure by private sale, which was confirmed by a supplemental judgment on August 12, 1971. Shortly thereafter, the defendant moved to open and vacate the judgment of June 18 and to set aside the default. On December 15, 1971, the court rendered a second supplemental judgment which denied the defendant's motions and ordered that part of the proceeds of the sale be distributed to the plaintiff. From the judgments and supplemental judgments the defendant has appealed to this court.

The finding, which is not subject to material correction, ¹ discloses the following facts: In 1969, the plaintiff contracted with the defendant to construct a dwelling on land owned by the defendant in the town OF westport. when the defendant allegedly defaulted, the plaintiff halted construction and, on July 9, 1970, filed suit to foreclose a mechanic's lien. Counsel for the defendant filed an appearance on August 5, 1970. The plaintiff thereafter moved for disclosure of defense and for strict foreclosure. On October 16, 1970, the defendant's counsel moved to withdraw his appearance. The case was specially assigned for January 13, 1971, for a hearing on the motions.

On January 13, 1971, the defendant's then counsel appeared and stated that the defendant's whereabouts were unknown, that numerous letters which he had sent to the defendant at his lask known address had been returned with no forwarding address, and that no information as to the defendant's location was available from either the defendant's former employer or his forwarding counsel. The defendant's attorney was unable to advise the court of any defense to the action. The court granted him permission to withdraw as counsel on the condition that the returned letters be filed with the court. The defendant's counsel thereupon left the courtroom and did not participate in the proceedings that followed. The returned letters were sent to the clerk of the court by letter dated January 19, 1971.

After permission to withdraw had been granted, the court, on January 13, 1971, entered a default against the defendant. Although the damages sought were unliquidated, the court proceeded that same day to hold a hearing in damages. The president of the plaintiff corporation testified to the amount of the debt. The court found that the defendant owed the plaintiff a total of $18,429.95, plus costs, and ordered a judgment of strict foreclosure.

On February 9, 1971, the defendant's present counsel appeared and moved to open and vacate the judgment of January 13, claiming that the proceedings had been improper, that a good defense existed and that the defendant had been prevented by reasonable cause from asserting his defense. The defendant also disputed the amount, if any, owed to the plaintiff. At a hearing on February 19, 1971, the defendant testified that he had been out of the country from July through November of 1970, that serious personal problems had prevented him from attending to the case, and that he had had no knowledge of the January 13 proceedings until subsequently advised of them by his present attorney. The court concluded that the defendant's testimony lacked credibility and that he had not shown reasonable cause for his failure to make a defense at the January 13 hearing. The court also concluded that '(t)he withdrawal of counsel, entry of the default, hearing in damages, special assignment of the case and the entry of the judgment, all of which occurred on January 13, 1971, were proper and in accordance with the Practice Act.' The defendant's motion was accordingly denied, and the defendant filed an appeal from that action to this court.

On June 18, 1971, however, on the defendant's motion and with the plaintiff's consent, the trial court opened and set aside the judgment of strict foreclosure and substituted a judgment of foreclosure by private sale. That judgment specifically reaffirmed the debt of $18,429.95 previously found due on the mechanic's lien. The sale was confirmed by supplemental judgment dated August 12, 1971. On August 16, 1971, the defendant filed a motion to open and vacate the June 18 judgment. With the motion the defendant's attorney filed an affidavit in which he stated that in moving to open the judgment of strict foreclosure, 'it was the express intention that said Motion would not, in any way, affect the rights, obligations or duties of any of the parties nor, in any way, affect the appeal pending before the Supreme Court of Connecticut'; that the judgment actually entered on June 18 'goes far beyond the defendant's Motion and contravenes the intent and the spirit of same . . . (because it) makes no reference whatsoever to the pending appeal or that the rights of the parties are to be protected'; that the June 18 judgment did 'not correctly reflect the proceedings that occurred . . . when the defendant's Motion was presented to the Court'; and that '(c)ounsels (sic) conduct amounts to consent or waiver.' ² But the defendant did not file a timely motion to correct the June 18 judgment to reflect the stipulation of the parties. Thereafter, on November 11, 1971, the defendant moved to set aside the default. In the meantime this court dismissed the defendant's appeal from the January 13 judgment for the reason that that judgment had been voided by the June 18 judgment. See Milford Trust Co. v. Greenberg, 137 Conn. 277, 279, 77 A.2d 80.

On December 15, 1971, the trial court rendered a second supplemental judgment denying the defendant's motions and ordering the clerk to pay $18,429.95 to the plaintiff from the proceeds of the sale. The trial court did not decide whether the June 18 judgment accurately reflected the underlying intention of the parties. At the hearing on the motions held on December 14, 1971, the defendant argued that the opening of the January 13 judgment on June 18 allowed him to assert his defenses as though he had never been defaulted. The court concluded that the June 18 judgment did not vitiate the default and the hearing in damages, and consequently did not permit the defendant to introduce evidence regarding the issues of liability and damages.

On this appeal the defendant seeks to argue that the trial court erred (1) in permitting prior counsel to withdraw on January 13, 1971, without notice to the defendant; (2) in granting a default, holding a hearing in damages and ordering judgment of strict foreclosure on January 13,...