Dime Savings Bank v. Cornaglia

636 A.2d 1370, 33 Conn. App. 549, 1994 Conn. App. LEXIS 47

• Court: Connecticut Appellate Court
• Decided: February 8, 1994
• Docket: 12098
• Status: Published

Opinions

Heiman, J.

The defendant Rose Marie Cornaglia¹ appeals from an order denying, in part, her motion to open and modify the judgment of foreclosure by sale rendered in favor of the plaintiff. The defendant claims that the trial court improperly refused to order that the plaintiff (1) seek satisfaction of the underlying debt from the property of the defendants Carl Cornaglia and Lucy Cornaglia before seeking recourse against her property, and (2) assign the debt and mortgage underlying the foreclosure action to her upon payment by her to the plaintiff of the amount of the judgment. We affirm the judgment of the trial court.

The plaintiff filed a complaint for foreclosure dated January 9,1992. The complaint alleged that, on January 30,1989, the defendants Carl Cornaglia and Lucy Cornaglia by their note, promised to pay the plaintiff the sum of $150,000 together with interest. The complaint further alleged that, as security for the note, the defendants Carl Cornaglia and Lucy Cornaglia mortgaged to the plaintiff two properties, parcel B and the North Branford Road property, both located in Wallingford. The complaint also alleged that, as further security for the note, the defendant Rose Marie Cornaglia mortgaged to the plaintiff property known as the South Main Street property, also located in Wallingford.² None of the defendants filed an answer to the complaint or special defenses.³ See Practice Book § 236.⁴

On April 20, 1992, the trial court rendered a judgment of foreclosure by sale of all the mortgaged properties. The sale was set for October 17, 1992. On October 7,1992, the defendant Rose Marie Cornaglia filed a motion to open the judgment, pursuant to Practice Book § 326,⁵ to extend the sale date of her property so that parcel B might be sold privately to satisfy the debt. The trial court granted the motion on October 13,1992, and set January 23,1993, as a new sale date for the properties. On December 15, 1992, the defendant filed a second motion to open that requested the trial court (1) to apply the fair market value of parcel B against the debt of Carl Cornaglia and Lucy Cornaglia, (2) to enter judgment against her for the amount remaining unpaid after parcel B had been sold, and (3) to extend the sale date to allow parcel B to be sold. On January 12, 1993, she filed amended prayers for relief that requested that the trial court order the plaintiff (1) to seek satisfaction of the debt from the properties owned by Carl Cornaglia and Lucy Cornaglia and (2) to assign the debt and mortgage underlying this action to her upon payment by her to the plaintiff of the amount of the judgment. The amended prayer for relief further requested that the sale date be extended to March 13,1993, so that parcel B could be sold. The trial court granted only the defendant’s request to extend the sale date. The new sale date was set for March 20, 1993. This appeal followed.

On January 26, 1993, the defendant filed a motion for articulation, pursuant to Practice Book § 4051,⁶ that requested the trial court to state the reasons that it denied her claims for relief in her amended prayer for relief. The trial court denied the motion on January 26, 1993. The defendant failed to file a motion for review with this court. See Practice Book § 4054.⁷ Since we cannot afford review of the defendant’s claims, we affirm the judgment of the trial court.

I

The duty to provide us with a record adequate to afford review rests with the appellant. Practice Book § 4061;⁸ Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993). The defendant did not fulfill her duty to provide us with an adequate record for review. The trial court rendered an oral decision on January 12,1993, after all parties to the action had an opportunity to present evidence and arguments to the court. The trial court did not file a written memorandum of decision and failed to cause its oral decision to be transcribed and signed pursuant to Practice Book § 4059. Further, even if we felt permitted to afford review based on the transcript itself, here it would be unavailing, since the trial court failed to place on the record its reasons for denying the two amended prayers for relief for which the defendant seeks review. The trial court limited itself to stating that a party and the defendant have entered into a bona fide purchase and sale agreement and that the parties have an opportunity to bring this contract to fruition. There was thus a total failure to comply with Practice Book § 4059.⁹

The defendant filed a motion for articulation, pursuant to Practice Book § 4051,¹⁰ that asked the trial court to set forth the grounds for its denial of her requested relief in the motion to open. The trial court denied the motion. The defendant then did nothing to perfect the record. “[S]he could have sought review by this court of the adequacy of the trial court’s response pursuant to Practice Book § 4054.”¹¹ Holmes v. Holmes, . She elected not to do so.¹² The defendant also had the ability to compel compliance with Practice Book § 4059.¹³ “Upon proper application, this court has the power, pursuant to Practice Book § 4183, to compel the trial court to comply with the mandate of this provision.”¹⁴ Holmes v. Holmes, supra, 321-22; State v. Rios, 30 Conn. App. 712, 718-19, 622 A.2d 618 (1993) (O’Connell, J., concurring).

“[U]nder normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.” (Internal quotation marks omitted.) J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987); Holmes v. Holmes, supra, 322. “The [defendant] failed to follow the relatively simple rules established to guarantee the presentation to this court of a record appropriate to review.” Holmes v. Holmes, supra. “As an appellate tribunal, either we adhere to the letter of the rules or create judicial anarchy, whereby, on an ad hoc basis, we decide cases, the outcome of which will turn on the mindset of the panel hearing the appeal.” Id.; State v. Deptula, 31 Conn. App. 140, 152, 623 A.2d 525, cert. granted, 226 Conn. 911, 628 A.2d 984 (1993) (Heiman, J., dissenting). Accordingly, we decline to afford review of the defendant’s claims.

II

The defendant also failed to disclose any defense pursuant to Practice Book § 236.¹⁵ The claims on appeal, in essence, dispute her liability in the foreclosure action. The dissent indicates that she had no defense to assert prior to the bank’s pressing its right to collect the debt owed from her. The dissent, however, fails to address the fact that the complaint alleges that the defendant was liable for the debt. Our rules place the burden on defendants to assert all defenses in a timely manner. A failure by the defendant to disclose a defense to liability in a timely manner, after a request pursuant to Practice Book § 236, precludes her from raising it later in the trial court. See Suffield Bank v. Berman, 25 Conn. App. 369, 373, 594 A.2d 493, cert. denied, 220 Conn. 913, 914, 597 A.2d 339 (1991); D. Caron, Connecticut Foreclosures (2d Ed. 1991 Sup.) § 5.01 E. Claims not properly raised before the trial court will not be reviewed on appeal. Saradjian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991); Goold v. Goold, 11 Conn. App. 268, 282, 527 A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987). Accordingly, we will not review these claims on appeal.

The judgment is affirmed.

In this opinion O’Connell, J., concurred.

1 The defendants in this action were Carl Cornaglia, Lucy Cornaglia, Rose Marie Cornaglia, The Dime Savings Bank of Wallingford and Colony Savings Bank. Only Rose Marie Cornaglia is a party to the appeal and we refer to her in this opinion as the defendant.

2 The dissent states that, as a matter of law, this allegation creates a surety. The case law cited in the dissent, however, does not support this assertion. Every case cited in the dissent involves a suretyship between a husband and wife, a contract to which a different legal standard applies. The law controlling surety transactions among persons other than spouses is not affected by the law controlling such transactions between husbands and wives that was developed to protect the sanctity of marriage. See 5 S. Williston, Contracts (4th Ed. 1993) § 11 et seq.

3 Default judgments were entered against the defendants Lucy Cornaglia and Colony Savings Bank for failure to appear. Default judgments were entered against the defendants, Carl Cornaglia, Rose Marie Cornaglia and The Dime Savings Bank of Wallingford for failure to disclose a defense.

We do not dispute the dissent’s assertion that Rose Cornaglia, if found by the trial court to be a surety, was entitled to claim that the bank first collect from Carl Cornaglia. Rose Cornaglia, however, never filed a special defense asserting such a right nor did she ever make a timely claim for this relief.

4 Practice Book § 236 provides: “In any action to foreclose or discharge any mortgage or lien or to quiet title, or in any action upon any written contract, in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve in accordance with Sec. 120 a written demand that such attorney present to the court, to become a part of the file in such case, a writing signed by him stating whether he has reason to believe and does believe that there exists a bona fide defense to the plaintiff’s action and whether such defense will be made, together with a general statement of the nature or substance of such defense. If the defendant fails to disclose a defense within five days of the filing of such demand, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense. If no disclosure of defense has been filed, the court may order judgment upon default to be entered for the plaintiff at the time the motion is heard or thereafter, provided that in either event a separate motion for such judgment has been filed. The motions for default and for judgment upon default may be served and filed simultaneously but shall be separate motions.”

5 Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. . . .”

6 Practice Book § 4051 provides in pertinent part: “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court or the appellate court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based.”

7 Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. If the motion depends upon a transcript of evidence or proceedings taken by a court reporter, the procedure set forth in Sec. 4053 shall be followed. . . .”

8 Practice Book § 4061 provides in pertinent part: “It is the responsibility of the appellant to provide an adequate record for review.”

9 Practice Book § 4059 provides: “Except in small claims actions and as provided in Sec. 4060, when rendering judgments in trials to the court and in criminal cases, in ruling upon motions to dismiss under Sec. 814 and motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. If written, the decision shall be stated in a memorandum of decision, which shall be filed with the clerk.”

In this case Practice Book § 4059 applies because the proceedings to determine the motion to open constituted a trial to the court which rendered a judgment.

10 See footnote 6.

11 See footnote 7.

12 “Our rules provide a vehicle for a party to create an adequate record for appeal. In the absence of the plaintiffs compliance with our rules, our role is not to throw a life preserver based upon merciful hope. We are a court of appeals, not of refuge.” Holmes v. Holmes, 32 Conn. App. 317, 321 n.6, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).

13 See footnote 9.

14 Practice Book § 4183 provides in pertinent part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete, correct or otherwise perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”

15 See footnote 3.