John Sterry et al. v. Michael Cannata (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 118

FACTS

The present case was commenced on May 18, 2011, when the plaintiffs, John Sterry and Jane Sterry, served a writ of summons and complaint on the defendant, Michael Cannata, seeking foreclosure on a judgment lien.   This case arises from a prior case between the same parties;  Sterry v. Cannata, Superior Court, judicial district of Middlesex, Docket No. CV–08–5005092–S (March 17, 2010, Bear, J.);   in which the defendant was self-represented.   In that case in 2008, the plaintiffs filed a six-count complaint against the defendant, including two counts seeking quiet title, a count seeking a permanent injunction, and the remaining counts alleging entry and detainer, intentional infliction of emotional distress and malicious erection of structure.

“The trial in [the underlying] case originally was scheduled to begin on April 29, 2009.   After several continuances requested by the defendant [for his anxiety and depression], on January 26, 2010, pursuant to the orders of other judges who had been involved in the pretrial proceedings in this case, the case was firmly scheduled for the jury trial requested by the defendant.   The defendant had been directed to be ready to proceed with such trial on January 26, 2010.   On such day the defendant appeared and as he had done several times during the pretrial proceedings he requested a continuance [again based on his anxiety and depression], which continuance was denied by the court.   The defendant then left the court room and court house and did not participate in the trial.   Upon the motion of the plaintiffs a default was entered against the defendant, the court found that he waived his right to a jury trial and the matter was tried to the court.”  Sterry v. Cannata, supra, Superior Court, Docket No. CV–08–5005092–S.   Upon completion of the trial, and on consideration of the post-trial briefs from both parties, the court entered judgment on March 17, 2010, in favor of the plaintiffs on all counts.   The defendant filed an untimely motion for a new trial, which the court denied.   The defendant did not file an appeal, nor a motion to open the judgment despite the fact that counsel appeared for the defendant on July 16, 2010.

In the complaint in the present case, the plaintiffs allege the following facts.   When the judgment of the underlying case remained “wholly unsatisfied,” the plaintiffs placed a judgment lien on the defendant's property on May 4, 2010.   The judgment “has never been paid in whole or in part.”

In the present case, the defendant filed an answer on August 30, 2011, in which he admitted all pertinent allegations in the complaint regarding the judgment lien.¹  He also asserted two special defenses, (1) that he lacked mental competency to stand trial in the underlying case, and was denied due process for determining his competency, and (2) that he lacks competency to represent or defend himself in the present case.

With permission from the court, the plaintiffs filed a motion for summary judgment on July 9, 2013, on the ground that there are no genuine issues of material fact as to the validity of their judgment lien or the liability of the defendant and the plaintiff is entitled to judgment as a matter of law.   The motion is accompanied by a memorandum of law.   Attached as exhibits are an affidavit from John Sterry and documents from the underlying case, including the complaint, motions filed by the defendant, and transcripts from the pretrial hearings.²  In response, the defendant filed a memorandum of law in opposition on August 29, 2013, which is accompanied by, inter alia, an affidavit from a psychiatric expert and a neuropsychological evaluation of the defendant dated November 23, 2012.   The plaintiffs filed a reply memorandum on September 20, 2013, along with a copy of the recording of the judgment lien and a disclosure of their expert witness.³

The court heard oral argument on the motion at short calendar on September 23, 2013.   The court has reviewed the memoranda of law with accompanying exhibits and grants the motion for summary judgment for the reasons set forth herein.

STANDARD OF REVIEW

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012);  see also Practice Book § 17–49.   To this end, “summary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

DISCUSSION

The plaintiffs argue they are entitled to summary judgment because (1) there are no issues of material fact regarding the defendant's liability under the judgment lien, (2) the doctrines of res judicata and collateral estoppel prevent relitigating the issue of the defendant's competency to stand trial in the underlying case, and (3) the defendant is currently competent to stand trial.   First, the plaintiffs argue that there are no issues of material fact as to the defendant's liability under the judgment lien because the defendant did not file a timely appeal or a timely motion to open the judgment, and he has admitted the allegations in the complaint.   Second, the plaintiffs argue that the defendant's first special defense is barred by res judicata and collateral estoppel because the issue of his competency was raised, litigated, and decided upon in the previous case.   Further, the plaintiffs maintain that the defendant was competent to stand trial in the underlying case because he understood the proceedings and was capable of assisting in the presentation of his case and that he had no right to a full hearing under the fourteenth amendment as the decision of his competency is, by statute, in the discretion of the judge.   In addition, the defendant was found to be competent to stand trial in a related criminal proceeding in 2011.⁴  Finally, the plaintiffs assert that the defendant is competent to stand trial in the present case because even “insane persons” can be sued, he is represented by a lawyer here, and he has not been adjudicated as incompetent.

In his objection, the defendant counters that the doctrines of res judicata and collateral estoppel do not apply for the reason that the decision in the underlying case is void and/or reversible.   The defendant argues that in the underlying case, the court did not follow the proper due process procedures as provided in General Statutes § 45a–132 for determining competency even though the court was aware of the defendant's alleged incompetency due to granting continuances on account of psychiatric notes provided by him regarding his depression and anxiety.   The defendant further argues that his incompetency prevented him from properly appealing or moving to open the judgment.   In addition, the defendant provided an affidavit from an expert witness, a psychologist, who, in his opinion, testified that the defendant was unlikely to have been competent during the first case, and that the defendant is not competent in the present case.

In their reply memorandum, the plaintiffs argue that the defendant cannot collaterally attack the underlying judgment in a foreclosure of a judgment lien with new evidence regarding competency and that neither of the special defenses fit within the traditional defenses to a foreclosure action.   The plaintiffs further argue that the defendant's due process argument has no merit because General Statutes § 45a–132 does not require a hearing to determine competence but simply gives the court discretion to appoint a guardian ad litem.

In the present case, it is the plaintiffs' position that, as to their complaint, there is an absence of a genuine issue of material fact regarding the defendant's liability under the judgment lien.   A court is “constrained to decide [a] matter as the issues [have] been pled by the parties.”  Warner v. Brochendorff, 136 Conn.App. 24, 34, 43 A.3d 785, cert. denied, 306 Conn. 902, 52 A.3d 728 (2012).   Further, “[an] admission in a plea or answer is binding on the party making it, and may be viewed as a conclusive or judicial admission ․ It is axiomatic that the parties are bound by their pleadings.”   (Internal quotation marks omitted.)  Rudder v. Mamanasco Lake Park Assn., 93 Conn.App. 759, 769, 890 A.2d 645 (2006).

In order to contest a default, a party must file either an appeal or a motion to open the judgment.   See Practice Book § 61–1 (right of appeal);  Practice Book § 17–43 (opening a default judgment).  “[A]n appeal must be filed within twenty days of the date notice of the judgment ․ is given.”   Practice Book § 63–1(a).   Concerning a motion to open, Practice Book § 17–43 provides in relevant part that “[a]ny judgment rendered or decree passed upon a default ․ may be set aside within four months succeeding the date on which notice was sent ․ upon the written motion of any party or person prejudiced thereby, showing reasonable cause ․ and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same ․” (emphasis added);  see also General Statutes § 52–212 (mirroring the language in Practice Book § 17–43).   On one hand, “[t]he trial court lacks jurisdiction to entertain a motion to open the judgment filed outside that four month period.”  Bufferd v. Yost, 51 Conn.App. 1, 3, 719 A.2d 487 (1998).   On the other, “[i]t is well established that [a] judgment rendered may be opened after the four month limitation [set forth in General Statutes § 52–212a and Practice Book § 17–43] if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake.”  (Internal quotation marks omitted.)  Davis v. Hebert, 105 Conn.App. 736, 740, 929 A.2d 625 (2008).

Here, as noted earlier, the defendant admits to all relevant allegations in the complaint regarding the imposition of the default judgment in the underlying case, the recording of the judgment lien, and the lack of any payment on the judgment.   In addition, the defendant never filed an appeal of the default judgment, nor a motion to open the judgment within the four-month time period despite the appearance of counsel on his behalf.   Further, the defendant does not allege fraud, absence of actual consent, or mutual mistake in his pleadings for the present case.   Because the admissions are conclusive, and he failed to timely file an appeal or a motion to open, there is no genuine issue of material fact concerning the defendant's liability under the judgment lien.

Next, the plaintiffs argue that the defendant's first special defense of incompetency in the underlying case is barred by res judicata and collateral estoppel and is not a valid special defense to a foreclosure action.   “Pleadings have an essential purpose in the judicial process ․ The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried ․ For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.”  (Internal quotation marks omitted.)  Warner v. Brochendorff, supra, 136 Conn.App. 34.  “The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.”  (Internal quotation marks omitted.)  Ed Lally & Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728–29 (2013).   To this end, “[f]acts which are consistent with [the complaint] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged ․” Practice Book § 10–50.

“A judgment lien on real property may be foreclosed or redeemed in the same manner as mortgages on the same property ․” General Statutes § 52–380a(c).  “Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ․ or, if there had never been a valid lien.”  (Emphasis in original;  internal quotation marks omitted.)  Ed Lally & Associates, Inc. v. DSBNC, LLC, supra, 145 Conn.App. 728.

In the present case, the defendant pleads in his first special defense that he was incompetent during the underlying case, and that the court in that case failed to follow the proper procedure for determining his competency.   In essence, the allegations in the defendant's first special defense attack the validity of the judgment used to create the judgment lien.   As a result, the defendant's first special defense is a valid defense.   The plaintiffs argue, however, that the defense is barred by the doctrines of res judicata or collateral estoppel.

“Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving [such claims].”  Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).  “[T]he doctrines of collateral estoppel and res judicata, commonly referred to as issue preclusion and claim preclusion, respectively, have been described as related ideas on a continuum.  [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits ․ [I]ssue preclusion ․ prevents a party from relitigating an issue that has been determined in a prior suit.”  (Internal quotation marks omitted.)  Zanoni v. Lynch, 79 Conn.App. 325, 337, 830 A.2d 314 (2003).   Because competency to stand trial is an issue and not a cause of action, collateral estoppel is the applicable legal doctrine in the present case.

“Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit ․ Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment ․ Collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.”   (Internal quotation marks omitted.)  In re Jah'za G., 141 Conn.App. 15, 26, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013).

In the first special defense, the defendant raises the issue of whether the defendant was competent to stand trial in the underlying case.   Under the relevant law, there is a “presumption that a person is competent and capable of defending a case brought against him.”  Twichell v. Guite, 53 Conn.App. 42, 48, 728 A.2d 1121 (1999).  “Moreover, even one whose thought processes are impaired to the extent of being insane has a legal capacity to sue or be sued, provided he has not been formally adjudicated an incompetent and placed under the guardianship of another.”  Ridgeway v. Ridgeway, 180 Conn. 533, 539, 429 A.2d 801 (1980).  “By definition, a mentally incompetent person is one who is unable to understand the nature of the ․ proceeding and unable to assist in the presentation of his or her case.”  In re Alexander, 223 Conn. 557, 563, 613 A.2d 780 (1992).  General Statutes § 45a–132(a) states in relevant part that “in any proceeding before ․ the Superior Court ․ the judge or magistrate may appoint a guardian ad litem for any minor or incompetent ․ if it appears to the judge or magistrate that one or more persons as individuals, or as members of a designated class or otherwise, have or may have an interest in the proceedings, and that one or more of them are ․ incompetent persons ․” (Emphasis added.)  General Statutes § 45a–132(b) further clarifies that “[t]he appointment of a guardian ad litem shall not be mandatory, but shall be within the discretion of the judge or magistrate.”   While there is specific procedure for determining competency laid out in a statute for probate and criminal proceedings, there is no such statute for civil proceedings.   See General Statutes § 45a–132a (probate proceedings);  General Statutes § 54–56d (criminal proceedings).

With respect to whether the defendant was incompetent in the underlying action, the defendant raised this same issue during the pendency of the prior case.   The court granted numerous continuances in that case due to the defendant's claimed incompetency based on his depression and anxiety.   Exercising its discretion, the court eventually stopped granting continuances and scheduled the trial.   The court at the hearing on June 9, 2009, discussed the defendant's ability to prepare for trial.

“The Court:  [Y]ou're well underway to ․ defending yourself ․

* * *

“The Court:  It seems like you're ready to defend yourself emotionally.”

* * *

“The Court:  Sir, the more you talk, the more I have the impression that you're going to be able to handle this if not by yourself, then with an attorney's assistance.

* * *

“The Court:  But it seems to me that, Mr. Cannata, you're well underway to either defending yourself or hiring a lawyer to assist you in this matter.   And so I'm inclined to have this matter returned to the trial list and set a date through the caseflow coordinator ․

* * *

“The Court:  And I don't know whether or not we need to bring your psychiatrist in here to decide whether or not you're able to go forward.

“Cannata:  That's fine.

“The Court:  You seem like you're in good shape.

* * *

“The Court:  The reason that we delayed the trial originally was because you didn't think that you were up to it at that time.   It seems to me that ․ you seem ․ emotionally ready and up to the job of defending yourself in this case.”

It is reasonable to conclude from the colloquy that the court determined that the defendant understood the proceedings and was able to assist in defending himself.   Moreover, the court chose not to bring in the defendant's psychiatrist to testify as to the defendant's competency.   After rendering a judgment, the court denied the defendants' post-trial motion for a new trial alleging, in part, a violation of due process under the United States constitution.

In civil cases such as the underlying case, the determination of competency and the appointment of a guardian ad litem as set forth in General Statutes § 45a–132(a) and (b) is in the discretion of the Superior Court judge, with no formal competency hearing required.   The defendant raised the issue of his competency, and it was litigated before the court, which, in its discretion, determined that the defendant was competent.   Moreover, the determination was necessary for the final judgment because that judgment could not have been rendered if the court had concluded that the defendant was incompetent;  instead, the court would have had to appoint a guardian ad litem.   As the issue of the defendant's competency was before the court and fully litigated between the same parties in the underlying case, collateral estoppel applies, and the court is precluded from relitigating the issue.   Thus, the plaintiffs have shown the absence of a genuine issue of material fact concerning the defendant's competency during the previous action.

Finally, regarding the defendant's second special defense, the plaintiffs argue that there are no questions of material fact as to the defendant's competency in the present case, and that the defendant's second special defense is not a valid defense in a foreclosure action.   In reference to special defenses, Practice Book § 10–50 states in relevant part that “[f]acts which are consistent with ․ statements [in the complaint] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged ․” As noted previously, “[t]he purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.”   (Internal quotation marks omitted.)  Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999).  Section 10–50 provides a list of special defenses, including “that the defendant was non compos mentis”—in other words, that the defendant was incompetent.  Practice Book § 10–50.   While “the list of special defenses in § 10–50 is illustrative rather than exhaustive”;  (internal quotation marks omitted) Kosinski v. Carr, 112 Conn.App. 203, 209 n.6, 962 A.2d 836 (2009);  as a rule, all special defenses seek to demonstrate that in spite of the facts as alleged in the complaint, “the plaintiff has no cause of action.”  (Internal quotation marks omitted.)  Valentine v. Labow, 95 Conn.App. 436, 447 n.10, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).   It is to this end that, “[h]istorically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ․ or, if there had never been a valid lien.”  (Emphasis in original;  internal quotation marks omitted.)  Ed Lally & Associates, Inc. v. DSBNC, LLC, supra, 145 Conn.App. 728.

In the present case, the defendant's second special defense alleges:  “On or about June 2011, the defendant was served with the present case at a time when he lack[ed] the mental competency to understand the nature of the proceedings being asserted against his property and lack[ed] the mental competency to represent himself in connection with this proceeding against his property.”   This special defense does not allege anything about the state of the defendant's competency during the events giving rise to the plaintiff's present cause of action.   Rather, this special defense solely attempts to question the defendant's ability to understand and defend himself.   This defense does not fit within the traditional defenses to a foreclosure action.   Further, the special defense does nothing to call into question whether the plaintiffs have a cause of action and, without including that essential characteristic of a special defense, the defendant's defense is invalid.   As a result, the plaintiffs have met their burden of showing the absence of a genuine issue of material fact as to the defendant's second special defense.⁵  Because the defendant's special defenses are either barred under collateral estoppel or invalid, and the defendant admits to liability on the judgment lien in his answer, there are no genuine issues of material fact and the plaintiffs are entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the plaintiffs' motion for summary judgment is granted.

Marcus, J.

FOOTNOTES

FN1. The defendant admitted to all of the allegations made except those pertaining to prior encumbrances on the defendant's property, which he left to the plaintiff's proof..  FN1. The defendant admitted to all of the allegations made except those pertaining to prior encumbrances on the defendant's property, which he left to the plaintiff's proof.

FN2. The court may take judicial notice of the pleading and proceedings in the underlying case.  Bayer v. Showmotion, Inc., 292 Conn. 381, 393 n.8, 973 A.2d 1229 (2009)..  FN2. The court may take judicial notice of the pleading and proceedings in the underlying case.  Bayer v. Showmotion, Inc., 292 Conn. 381, 393 n.8, 973 A.2d 1229 (2009).

FN3. All of the affidavits and evidence provided are admissible, and neither party raised any objections.  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997) (“Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  [Internal quotation marks omitted.] );   see also Fairfield Norwalk, L.P. v. Cole, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–13–6016402–S (August 12, 2013, Adams, J.T.R.) (“[A] court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)”)..  FN3. All of the affidavits and evidence provided are admissible, and neither party raised any objections.  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997) (“Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  [Internal quotation marks omitted.] );   see also Fairfield Norwalk, L.P. v. Cole, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–13–6016402–S (August 12, 2013, Adams, J.T.R.) (“[A] court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)”).

FN4. In criminal proceedings against the defendant in 2011, the court held a formal competency hearing and found him competent to stand trial.   He pleaded guilty to the charges on March 16, 2011.   See State v. Cannata, Superior Court, judicial district of Middlesex, Docket No. CR–10–0192401–S;  State v. Cannata, Superior Court, judicial district of Middlesex, Docket No. CR–11–0193540–S..  FN4. In criminal proceedings against the defendant in 2011, the court held a formal competency hearing and found him competent to stand trial.   He pleaded guilty to the charges on March 16, 2011.   See State v. Cannata, Superior Court, judicial district of Middlesex, Docket No. CR–10–0192401–S;  State v. Cannata, Superior Court, judicial district of Middlesex, Docket No. CR–11–0193540–S.

FN5. It is important to note that the defendant is represented by counsel in the present action, which demonstrates that he “[understands] the advisability of obtaining counsel, the nature of the ․ claim, the prospect of an adverse judgment and its consequences concerning [his] interest in the property.”  Twichell v. Guite, 53 Conn.App. 42, 50–51, 728 A.2d 1121 (1999);  see also Ridgeway v. Ridgeway, supra, 180 Conn. 539 (finding a party competent because, inter alia, she “was represented by counsel of her own choosing”)..  FN5. It is important to note that the defendant is represented by counsel in the present action, which demonstrates that he “[understands] the advisability of obtaining counsel, the nature of the ․ claim, the prospect of an adverse judgment and its consequences concerning [his] interest in the property.”  Twichell v. Guite, 53 Conn.App. 42, 50–51, 728 A.2d 1121 (1999);  see also Ridgeway v. Ridgeway, supra, 180 Conn. 539 (finding a party competent because, inter alia, she “was represented by counsel of her own choosing”).

Marcus, Shelley A., J.