Connecticut National Bank v. Browder

622 A.2d 588, 30 Conn. App. 776, 1993 Conn. App. LEXIS 159
CourtConnecticut Appellate Court
DecidedMarch 30, 1993
Docket11214
StatusPublished
Cited by17 cases

This text of 622 A.2d 588 (Connecticut National Bank v. Browder) 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
Connecticut National Bank v. Browder, 622 A.2d 588, 30 Conn. App. 776, 1993 Conn. App. LEXIS 159 (Colo. Ct. App. 1993).

Opinion

Schaller, J.

The defendants Dewey Browder, Jr., and Carolyn Browder1 appeal from a judgment of foreclosure by sale of a judgment lien. They claim that the trial court (1) misapplied the standard of proof in determining whether their special defense was proven and (2) improperly rendered judgment of foreclosure without evidence of the judgment lien. We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. The plaintiff brought an action against the defendants based on nonpayment of a loan and, in 1974, obtained a judgment against them in the amount of $4526.50. The plaintiff subsequently filed a judgment lien against the defendants’ real estate. The defendants made ten payments totaling $1660 toward the balance owing on the judgment. They made six of the payments directly to the plaintiff’s attorney. A sheriff [778]*778collected the four other payments and turned them over to the plaintiff’s attorney. Neither the plaintiff nor its counsel received any further payments from the defendants. As a result, the defendants failed to satisfy the debt owed on the 1974 judgment.

In 1988, the plaintiff brought the current foreclosure action against the defendants. In response, the defendants filed a special defense asserting that they had discharged the debt owed on the 1974 judgment pursuant to a wage execution involving the named defendant’s former employer, Pitney Bowes. After a hearing on the matter, the trial court in an oral decision rejected the defendants’ special defense and rendered judgment of foreclosure by sale. This appeal followed.

I

The defendants claim that the trial court misapplied the correct standard of proof when assessing the viability of their special defense. The defendants concede that the trial court properly recited the applicable standard of proof, namely proof by a preponderance of the evidence. They insist, however, that the trial court in effect held them to a higher standard. The defendants claim, therefore, is tantamount to a challenge to the findings underlying the trial court’s judgment, specifically the finding that they failed to establish their special defense by a preponderance of the evidence.

We note at the outset that the trial court orally rendered its decision after hearing evidence on the matter. The trial court neither issued a written memorandum nor signed a transcipt of its oral decision. Although not fully complying with Practice Book § 4059,2 the court [779]*779aid issue a detailed statement of its findings and conclusions in connection with its decision. Because the court’s decision is sufficiently detailed and concise we will review the defendants’ claim so as not to “exalt form over substance . . . .” State v. Rios, 30 Conn. App. 712, 714, 622 A.2d 618 (1993); see State v. Rivera, 30 Conn. App. 224, 225 n.1, 619 A.2d 1146 (1993).

The viability of the defendants’ first claim hinges on the application of the clearly erroneous standard. A reviewing court “may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” Practice Book § 4061; Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). It is axiomatic that it is not the function of a reviewing court to retry the facts and gauge the credibility of witnesses. Kelman v. McDonald, 24 Conn. App. 398, 401, 588 A.2d 667 (1991).

In this case, the trial court found that the defendants failed to sustain their burden of proving by a fair preponderance of the evidence the full payment of an outstanding debt. This finding was adequately supported by the record as a whole. The defendants argue that their evidence conclusively established that a wage execution discharged the debt. This position is unpersuasive for several reasons.

First, the defendants never established that the wage execution was actually served on the employer. While there was evidence of a letter directing the sheriff to [780]*780serve a wage execution on the employer, a personnel manager from the employer testified that “there is no evidence in our payroll or personnel files to say that any kind of wage garnishment was ever issued on Dewey Browder.” The record thus amply supports the trial court’s finding that the employer had not relinquished sufficient funds to discharge the outstanding debt.

The second flaw in the defendants’ argument is that, even if we assume that the wage execution was served on the employer, the evidence failed to establish that the execution fully discharged the debt. In fact, the only evidence suggesting that the entire debt was satisfied came from the testimony of the defendant Dewey Browder who testified that his wages were garnished for four or five years. On the other hand, the payment history as set forth by the plaintiff’s evidence reveals that funds were received in ten installments over a two and one-half year period totaling $1660. It is clear that the trial court was entitled to discredit the defendants’ testimony and rely on the more detailed evidence submitted by the plaintiff. See Kelman v. McDonald, supra. Thus, the court, applying the correct standard of proof, properly found that the defendants’ special defense was not proven. We conclude that the trial court’s findings were adequately supported by the record and that the court’s decision was not erroneous in law. See Practice Book § 4061.

II

The defendants next claim that the trial court improperly rendered judgment of foreclosure without proof of the existence of the underlying judgment lien. The defendants’ contention is predicated on the fact that the plaintiff failed to enter the judgment lien into evidence during the course of the hearing. We find no merit in this claim.

[781]*781While testifying, the defendant Dewey Browder clearly admitted the existence of the judgment lien. The following colloquy between Dewey Browder and his attorney reveals the admission:

“Mr. Pearson: And you discovered that you couldn’t get a loan because there was a lien on your property?
“Mr. Browder: Right.
“Mr. Pearson: And Mr. Krasnow [plaintiff attorney’s] name showed up on the land records as the person who had placed the lien on the house?
“Mr. Browder: Right.
“Mr. Pearson: And that was in 1988 or 1989. Did you then have discussions with Mr. Krasnow’s office?
“Mr. Browder: Yes, I did. I wanted him to take, you know, like why wasn’t that lien off now, out of the records. . . .
“Mr. Pearson: Did you get any indication from Mr. Krasnow as to why the lien had not been removed, did he discuss that with you?
“Mr. Browder: Well, he said that he didn’t get all his money, all of the money. He only received like $1,600.00. . . .” (Emphasis added.)

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Bluebook (online)
622 A.2d 588, 30 Conn. App. 776, 1993 Conn. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connecticut-national-bank-v-browder-connappct-1993.