Connecticut National Bank v. L & R Realty

699 A.2d 297, 46 Conn. App. 443, 1997 Conn. App. LEXIS 428

• Court: Connecticut Appellate Court
• Decided: August 26, 1997
• Docket: AC 16092
• Status: Published

Opinions

Opinion

HEIMAN, J.

The defendants appeal from the judgment of the trial court rendered in favor of the plaintiff in this foreclosure action. On appeal, the defendants claim that the trial court improperly (1) found that there was sufficient evidence to support a judgment in favor of the plaintiff, (2) lacked jurisdiction to set law days after dismissal of the first appeal, (3) granted the plaintiffs motion to strike the counterclaims from the jury list, (4) awarded attorney’s fees, (5) held the plaintiff could enforce the note, and (6) held the subordination agreement was unenforceable.

This case is governed by our decision in the companion lender liability action, L & R Realty v. Connecticut National Bank, 46 Conn. App. 432, 699 A.2d 291 (1997). The claims of L & R Realty (L & R) in that action are essentially identical to L & R’s counterclaims in this foreclosure action.¹ In L & R Realty v. Connecticut National Bank, supra, 442, we concluded that because the only evidence before the trial court was the signed loan documents containing the jury trial waiver provisions, there was not sufficient evidence before the trial court to enable it to make the factual determination of whether L&R had knowingly, intelligently and voluntarily waived its constitutional right to a jury trial. Thus, we concluded that the trial court improperly granted Connecticut National Bank’s motion to strike L & R’s lender liability claims from the jury docket. Accordingly, we reversed the judgment of the trial court and remanded the case with direction to deny Connecticut National Bank’s motion to strike the lender liability claims from the jury docket and to conduct an evidentiary hearing to determine whether L & R’s contractual jury trial waiver was valid. Our decision in L & R Realty v. Connecticut National Bank, supra, 432, is, therefore, dispositive of this appeal.²

The judgment is reversed and the case is remanded with direction to deny the plaintiffs motion to strike the lender liability claims from the jury docket and to conduct an evidentiary hearing in accordance with L & R Realty v. Connecticut National Bank, supra, 46 Conn. App. 432.

In this opinion DUPONT, C. J., concurred.

1 We note that neither party raised the issue of a prior pending action via a motion to dismiss. See Gaudio v. Gaudio, 23 Conn. App. 287, 294-97, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). We further note that the prior pending action doctrine does not implicate subject matter jurisdiction, and, thus, may not be raised at any time. See id., 294-95. We, therefore, do not address this issue.

2 The dissent argues that L&R was not entitled to a jury trial on its counterclaims because the counterclaims were based on the mortgage and thus were equitable in nature. In Northeast Savings, F.A. v. Plymouth Commons Realty Corp., 229 Conn. 634, 640-42, 642 A.2d 1194 (1994), however, our Supreme Court specifically held that a counterclaim in a foreclosure action seeking damages for breach of contract, breach of fiduciary duty and negligence constitutes an independent legal action triable to the jury. As L & R’s counterclaims in this foreclosure action are essentially the same as the allegations making up the counterclaim in Northeast Savings, F.A., we conclude that L & R’s counterclaims were legal in nature and did warrant a jury trial.