Town of Windham v. Eugene Arsenault et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT, EUGENE ARSENAULT'S, MOTION TO OPEN JUDGMENT FILED OCTOBER 21, 2010

By its order dated September 1, 2011, the Appellate Court ordered, inter alia, that this trial court act upon the defendant, Eugene Arsenault's, motion to open a judgment of foreclosure entered June 21, 2010.

A transcript of a short calendar hearing held November 15, 2010 relative to the motion, originally filed October 21, 2010, by Eugene Arsenault (hereinafter the defendant) reveals that his property was sold at public auction pursuant to the judgment of foreclosure by sale entered June 21, 2010.   The defendant filed this motion prior to the court's approval of the sale claiming that the defendant was not competent when the judgment entered and was thereby unable to challenge the terms and conditions of the judgment.

At the hearing, the Town of Windham (hereinafter the plaintiff) raised three issues in opposition to the motion.   First, the plaintiff claimed the motion was not filed on a timely basis, i.e., not within four months.   Second, the plaintiff claimed the court should not consider a social worker's letter regarding the competency of the defendant because it was hearsay.   Third, the plaintiff claimed the court should not consider a decree of the Windham Probate Court appointing a conservator for the defendant because the plaintiff was not a party to the action.   In response, this court on November 29, 2010 found that the automatic stay provision of § 61–11(a) precluded any further order.  (The defendant had filed an appeal of an earlier order of the court.)

After due consideration, the court now makes the following findings:

1. The motion to open was filed on a timely basis, having met the Connecticut Practice Book requirement that it be filed within four months succeeding the day on which notice (of the judgment) was sent.  P.B. 17–4.   It was filed October 21, 2010;  the judgment entered June 22, 2010.   Notice of the judgment was sent June 24, 2010.   The filing was within the four months allowed.

2. The court has not considered a submission of a report by a social worker relative to the defendant's competency.   The plaintiff objected on the ground of hearsay, and the court agrees.

3. The court has taken judicial notice of a submission by the defendant of a decree of the Windham Probate Court in which a conservator was appointed on November 11, 2010.   The contents of this decree make it clear to the court that the defendant was not competent at the time of the June 22, 2010 judgment.   “There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties ․” Jewett v. Jewett, 265 Conn. 669, 679 n.7, 830 A.2d 193 (2003).   Lack of competency is clearly a good and compelling reason to open a judgment.

Accordingly, the motion to open the judgment is granted for the purpose of vacating the judgment.   The motion for judgment of foreclosure must be reclaimed by the plaintiff.   The current attorney for the defendant or the defendant's conservator may safeguard the interest of the defendant in this proceeding.

THE COURT

Potter, J.T.R.

Potter, Russell F., J.T.R.