American Bank v. Eagle Construction Co.

522 A.2d 835, 10 Conn. App. 251, 1987 Conn. App. LEXIS 875
CourtConnecticut Appellate Court
DecidedMarch 24, 1987
Docket4872
StatusPublished
Cited by5 cases

This text of 522 A.2d 835 (American Bank v. Eagle Construction Co.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Bank v. Eagle Construction Co., 522 A.2d 835, 10 Conn. App. 251, 1987 Conn. App. LEXIS 875 (Colo. Ct. App. 1987).

Opinion

Borden, J.

This appeal involves the issue of a mortgagee’s priority, as against a subsequent encumbrancer, of a present advance made by the mortgagee in connection with an open-end construction mortgage which was in conformity with General Statutes § 49-3. The [252]*252trial court held that the present advance was entitled to priority over the subsequent encumbrancer, which appealed from that determination. We find no error.

The facts are undisputed. Prior to February 13,1981, the plaintiff held a blanket mortgage in the amount of $300,000 on property owned by the named defendant, The Eagle Construction Company (Eagle). This blanket mortgage included a certain lot known as Lot No. 18, located in Orange. On February 13,1981, the plaintiff advanced $36,000 to Eagle. Of that advance, $30,000 was used to reduce Eagle’s $300,000 indebtedness to the plaintiff. In connection with that transaction, the plaintiff released Lot No. 18 from the blanket mortgage, and Eagle executed a new note in the amount of $100,000, and a mortgage deed to Lot No. 18 to secure that note. The mortgage deed was labeled “Open-End Mortgage Deed (Construction),” and contained the precise language required by General Statutes § 49-3 (a) (l).1 [253]*253It did not, however, specifically indicate that any sums, namely the $36,000, were advanced to Eagle by the plaintiff at the time of the mortgage transaction. This mortgage deed was properly recorded. Thereafter, between March 11,1981, and December 23,1982, the plaintiff made future advances in the total amount of $58,510.50 to Eagle, pursuant to the construction mortgage, for purposes of constructing a residence on Lot No. 18. The total amount of the plaintiffs advances to Eagle pursuant to the construction mortgage was, therefore, $94,910.50.

Meanwhile, on July 6,1982, Eagle gave the defendant, Country Lumber, Inc. (Country), a mortgage on Lot No. 18 and on other property of Eagle, in the amount of $42,560. This mortgage was to secure a delinquent indebtedness from Eagle to Country for labor and materials supplied to Lot No. 18 and other property of Eagle, and was recorded on July 12,1982.

Thereafter, Eagle defaulted on the note of February 13,1981, to the plaintiff. The plaintiff initiated this foreclosure action. Country raised the special defense that, pursuant to General Statutes § 49-3, the plaintiff cannot as against Country claim the initial advance as part of its debt. The parties stipulated to all the facts in the trial court, and requested the court to determine the validity of the inital advance as between the plaintiff and Country.2 The trial court ruled in favor of the [254]*254plaintiff that its initial advance was entitled to priority-over Country’s mortgage, pursuant to General Statutes § 49-3. Country appealed.

We first consider the question of whether Country appealed from a final judgment of the trial court. This court sua sponte raised this issue at the time of oral argument. This issue arises out of the following unusual procedural context.

While this foreclosure action was pending in the trial court, the plaintiff, Eagle and Country entered into a stipulation that Lot No. 18 would be sold by private sale to a buyer who had agreed to buy the property for $130,000. In connection with that sale, the plaintiff's mortgage indebtedness would be paid in full and its mortgage and lis pendens would be released, except that the plaintiff and Country would continue to litigate the issue of the priority of the plaintiff’s initial advance of $30,000. If it was adjudicated that the plaintiff did not have priority as to the $30,000, it would pay Country $30,000 plus specified interest.

In connection with this stipulation, Country moved in the trial court for approval of this private sale. In its motion, Country represented to the court that the plaintiff had obtained an appraisal of the property in the amount of $130,000, that a buyer had been obtained who had signed a contract and given a 10 percent deposit, and that all of the defendants3 had agreed to the private sale. The court granted this motion, and ordered that the property be sold privately for $130,000 and that the claims of the parties “be reduced to the fund from the sale.” The ultimate outcome of this process was that the plaintiff and Country, which are the only remaining parties in interest, are now litigating their right to the fund of $30,000 which has been substituted for the property.

[255]*255After the sale, and after the court’s ruling on the plaintiffs and Country’s competing claims regarding the priority of the plaintiff’s initial advance, Country moved for judgment to be rendered in favor of the plaintiff. Although it was not specifically stated, it was implied that the motion was made so that Country could obtain a final judgment from which to appeal, and thus challenge the propriety of the trial court’s ruling on the merits of the controversy between the plaintiff and Country. The trial court denied this motion without opinion. Country thereafter moved for reargument of its motion for judgment, this time making explicit that it was doing so for the purpose of taking an appeal. Again, the trial court denied the motion without opinion. Thereafter Country filed this appeal.

Ordinarily, the lack of a judgment of foreclosure rendered by the trial court would defeat the appellate jurisdiction of this court. See Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 223, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct. 135, 88 L. Ed. 2d 111 (1985). The peculiar procedural posture of this case, however, leads us to conclude that the order of the court determining the priorities between the plaintiff and Country was final for purposes of this appeal. By arranging for the private sale and obtaining the court’s approval therefor, the parties avoided the expense and delay of a foreclosure by sale. Thus, they furthered the judicial policy of avoiding unnecessary economic waste. See Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984). They shifted their claims from the property to the fund of money which resulted from its sale. They then sought a final judgment from the court in accordance with its prior ruling of law.

We can perceive no reason why the trial court twice denied their request for this judgment. It is true that the parties should then have requested an order to com[256]*256píete the record under Practice Book § 4183 (1) (formerly § 3096) or moved for articulation of the basis of the trial court’s denial of the motion for judgment; Practice Book § 4051 (formerly § 3082); and thereafter, moved for review in this court. Practice Book § 4053 (formerly § 3107); Jazlowiecki v. Cyr, 4 Conn. App. 76, 79, 492 A.2d 516 (1985). Had they done so, we would have ordered the trial court to render judgment. Under these circumstances, however, we deem the failure of the parties to do so more a matter of form than of substance. It is akin to the failure of the trial court, having made a final order, to prepare a judgment file. See Lehto v. Sprout, 9 Conn. App. 441, 445,

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1995 Conn. Super. Ct. 9905 (Connecticut Superior Court, 1995)
Pace Const. v. Cascella Son Const., No. Cv 94 0317925s (Nov. 25, 1994)
1994 Conn. Super. Ct. 11788 (Connecticut Superior Court, 1994)
Bloom v. Zon. Bd. of Appeals, Norwalk, No. Cv 93-0303191 (Feb. 23, 1994)
1994 Conn. Super. Ct. 1901 (Connecticut Superior Court, 1994)
Fidelity Trust Co. v. Irick
525 A.2d 551 (Connecticut Appellate Court, 1987)

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Bluebook (online)
522 A.2d 835, 10 Conn. App. 251, 1987 Conn. App. LEXIS 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-bank-v-eagle-construction-co-connappct-1987.