Goodwin Estate Assn., Inc. v. Starke , 184 Conn. App. 92 ( 2018 )

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THE GOODWIN ESTATE ASSOCIATION, INC.
v. DARYL L. STARKE ET AL.
(AC 40451)
Lavine, Moll and Flynn, Js.
Syllabus
The plaintiff sought to foreclose a statutory lien for unpaid common charges
and assessments on a condominium unit owned by the defendant S.
The trial court rendered judgment of foreclosure by sale. Thereafter,
the court denied S’s motions to open the judgment and to dismiss the
action, and approved the sale of the property, and S appealed to this
court. He claimed that the trial court improperly considered the equities
and the length of time that the plaintiff had been deprived of its fees
in denying his motion to dismiss. S also claimed that the trial court
lacked subject matter jurisdiction because the plaintiff had not properly
adopted its standard foreclosure policy, in violation of statute (§ 47-
261b [b]) and the plaintiff’s condominium declaration. Held:
1. S’s claim that the trial court, in denying his motion to dismiss, improperly
considered the equities and the length of time that the plaintiff had been
deprived of its fees was unavailing, S having abandoned the claim by
failing to brief it adequately.
2. S could not prevail on his claim that the trial court committed plain error
in denying his motion to dismiss, which was based on his claim that
he had not received notice from the plaintiff of its adopted standard
foreclosure policy; the plaintiff’s allegations and the record were enough
to imply that a properly adopted standard foreclosure policy existed
and that S received notice of the policy after adoption, as S previously
acknowledged that he had received the policy, and he did not challenge
the sufficiency of the affidavit of the plaintiff’s property manager, which
stated that the policy had been mailed to S.
Argued May 14—officially released August 7, 2018
Procedural History
Action to foreclose a statutory lien for unpaid com-
mon charges and assessments against a certain condo-
minium unit owned by the named defendant, and for
other relief, brought to the Superior Court in the judicial
district of Hartford, where the court, Robaina, J.,
granted the plaintiff’s motion for summary judgment as
to liability; thereafter, the court, Dubay, J., rendered
judgment of foreclosure by sale; subsequently, the
court, Wahla, J., denied the named defendant’s motions
to open the judgment and to dismiss; thereafter, the
court, Wahla, J., granted the committee’s motion for
approval of the sale, deed, report, fees and expenses,
and the named defendant appealed to this court; subse-
quently, the court, Wahla, J., issued an articulation of
its decisions. Affirmed.
Keith Yagaloff, for the appellant (named defendant).
John J. Bowser, for the appellee (plaintiff).
Opinion
FLYNN, J. The defendant Daryl L. Starke1 appeals
from a condominium foreclosure judgment in favor of
the plaintiff, the Goodwin Estate Association, Inc., aris-
ing from the defendant’s failure to pay common charges
and assessments levied on his condominium unit. The
defendant’s sole reviewable claim on appeal stems from
the trial court’s denial of his motion to dismiss the
action for lack of subject matter jurisdiction. The defen-
dant claims that the trial court erred in denying his
motion to dismiss because (1) the court improperly
considered the equities and length of proceedings when
deciding the motion, and (2) the plaintiff did not prop-
erly adopt its standard foreclosure policy in violation of
statute and the plaintiff’s declaration, thereby depriving
the trial court of jurisdiction. We affirm the trial
court’s judgment.
This appeal has been preceded by a lengthy proce-
dural history, which began with the commencement of
this foreclosure action in 2014, approximately four
years ago. The foreclosure action arises out of a
$16,130.27 debt owed to the plaintiff condominium asso-
ciation for common charges and assessments. The fore-
closure has been the subject of two motions to dismiss,
two defendant’s motions for reconsideration, three
motions for articulation, four objections to summary
judgment, and two appeals to this court. Against this
backdrop, we lay out the following undisputed facts.
The defendant purchased 84 Goodwin Circle, Hartford,
a condominium within the Goodwin Estate, in 2009.
Since August, 2014, the defendant has not paid his com-
mon charges and assessments. On October 20, 2014,
the plaintiff initiated this foreclosure action against the
defendant. On September 29, 2015, the plaintiff moved
for summary judgment. The court granted the motion.
On October 17, 2016, a foreclosure by sale was ordered
for January 14, 2017. At that sale, Huntington National
Bank, a junior lienholder and named defendant, was
the winning bidder. The defendant moved to open the
judgment and to dismiss the action on January 27 and
March 22, 2017, respectively. After a hearing, the court
denied both motions and approved the committee sale,
all on April 26, 2017. This timely appeal from the denial
of the motion to open, the denial of the motion to
dismiss, and the approval of the committee sale fol-
lowed.2 Thereafter, the defendant filed a motion for
articulation of the orders denying both motions. An
articulation dated November 13, 2017, followed. Addi-
tional facts will be set forth as necessary.
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the plain-
tiff cannot as a matter of law and fact state a cause of
action that should be heard by the court. . . . A motion
to dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the trial court’s ultimate legal conclusion and
resulting grant of the motion to dismiss will be de
novo. . . .
‘‘When a . . . court decides a jurisdictional question
raised by a . . . motion to dismiss, it must consider
the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone. . . . [I]n determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Citation omitted; internal quotation marks omitted.)
Avoletta v. State, 152 Conn. App. 177, 182–83, 98 A.3d
839, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014).
I
We first consider the defendant’s claim that the trial
court erred in denying his motion to dismiss because
it improperly considered the equities and length of pro-
ceedings when deciding the motion. The court’s Novem-
ber 13, 2017 articulation dealt, in one memorandum,
with both the defendant’s motion to open and his
motion to dismiss. A motion to open might have equita-
ble aspects. See Flater v. Grace, 291 Conn. 410, 417–18,
969 A.2d 157 (2009); GMAC Mortgage, LLC v. Ford, 178
Conn. App. 287, 295, 175 A.3d 582 (2017); Nelson v.
Charlesworth, 82 Conn. App. 710, 712, 846 A.2d 923
(2004); Connecticut Savings Bank v. Obenauf, 59 Conn.
App. 351, 352, 758 A.2d 363 (2000). The defendant
focuses, however, solely on the motion to dismiss,
expressing his argument in his principal brief as follows:
‘‘The trial court erred in deciding the motion to dismiss
when it considered the equities involved; and the length
of time the [plaintiff] had been deprived of its fees; the
defendant’s refusal to pay the said fees/dues. . . . By
considering . . . factors [other than whether the plain-
tiff properly adopted its standard foreclosure policy],
such as the equities of the parties and the length of
time the plaintiff had been deprived of its fees, the trial
court erred.’’ After the plaintiff noted in its brief that
the trial court’s articulation pertained to both the defen-
dant’s motion to dismiss and his motion to open, the
defendant argued in reply that, because the trial court
considered the two motions to be duplicative, the trial
court necessarily considered equitable factors in decid-
ing the motion to dismiss. Although ordinarily ‘‘we do
not review claims raised for the first time in a reply
brief’’; United Amusements & Vending Co. v. Sabia,
179 Conn. App. 555, 560 n.1, 180 A.3d 630 (2018); the
defendant’s reply brief added no new analysis on the
matter.
The defendant points to no authority for his argument
in either his principal or reply briefs. Although he
acknowledges that the trial court’s articulation dealt
with both his motion to dismiss and his motion to open,
he ignores the applicability of equitable principles that
may be considered in deciding a motion to open. The
defendant, however, implicitly acknowledged the pro-
priety of applying equity to his motion to open, because
in his memorandum of law in support of that motion,
he asked the court to consider equitable principles. He
cannot now seriously claim injury on the basis of the
court’s consideration that he so openly invited. The
defendant’s briefs do not provide us with any analysis
of this argument other than his conclusory statement
that the trial court erred. We therefore conclude that
this argument is inadequately briefed and deem it aban-
doned. See Gay v. Safeco Ins. Co. of America, 141 Conn.
App. 263, 269 n.3, 60 A.3d 1046 (2013).
II
The defendant also claims that the court erred in
denying his motion to dismiss because the plaintiff did
not adopt properly its standard foreclosure policy when
it failed to include a copy of the new or amended rule
with its notice to the unit owners. The defendant claims
that the trial court’s failure to grant his motion to dis-
miss on this basis is plain error. The defendant invokes
the plain error doctrine because, although he raised
issues concerning the adoption of the standard foreclo-
sure policy in his motion to dismiss, he did not argue
before the trial court that the affidavit of Peg Routhier,
the plaintiff’s property manager, was insufficient.
The following additional facts are relevant. In its com-
plaint, the plaintiff alleged that the defendant was the
owner of the condominium unit in question and had
not paid his common charges and assessments, along
with interest, costs and attorney’s fees. The plaintiff
also alleged that its declaration was recorded and filed
on the Hartford land records, and that the declaration
provided the legal basis for those common charges and
assessments. Additionally, the plaintiff alleged that it
made a written request for payment, but that the defen-
dant refused, and that the plaintiff had perfected a statu-
tory lien against the subject property. The plaintiff also
claimed to have filed a notice of pendency of the under-
lying action with the Hartford town clerk’s office.
‘‘[An appellant] cannot prevail under [the plain error
doctrine] . . . unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injustice.
. . . [T]he plain error doctrine . . . is not . . . a rule
of reviewability. It is a rule of reversibility. That is, it
is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment
. . . for reasons of policy. . . . Put another way, plain
error review is reserved for only the most egregious
errors. When an error of such a magnitude exists, it
necessitates reversal.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. McClain, 324 Conn. 802,
812–14, 155 A.3d 209 (2017).
Considering the defendant’s claim against the stan-
dard for plain error, we conclude that there was not
clear and harmful error. The defendant cites to Neigh-
borhood Assn., Inc. v. Limberger, 321 Conn. 29, 45, 136
A.3d 581 (2016), for the proposition that notice must
be given of a standard foreclosure policy for a court to
assert jurisdiction. The defendant’s argument misses
the mark. In Limberger, the flaw leading to reversal was
that that common interest community did not actually
adopt a standard foreclosure policy in accordance with
rule notice and comment requirements. Id.
Here, however, the defendant’s sole argument in his
motion to dismiss rested on his claim that he did not
receive notice of the adopted standard foreclosure pol-
icy. In its articulation on its denial of the defendant’s
motion to open and motion to dismiss, the trial court
stated ‘‘that it is particularly noteworthy that the defen-
dant has stated virtually in every motion and pleading
before this court for the last approximately three years
that he had not received the notice in the mail. The
court has not found in his favor.’’ The plaintiff, in its
opposition to the motion to open, supported its argu-
ment that notice was proper with the affidavit of Peg
Routhier, the property manager at the time the action
was commenced, who averred that a copy of the stan-
dard foreclosure policy was mailed to the defendant.
The defendant claims that this affidavit was deficient
on its face to meet the notice requirements of General
Statutes § 47-261b (b) because Routhier did not claim
specifically to have sent a copy of the policy after adop-
tion. The plaintiff’s standard foreclosure policy was
adopted on January 27, 2014. The defendant filed an
affidavit on June 30, 2015, some seventeen months later,
attached to his opposition to the plaintiff’s first motion
for summary judgment. He stated in paragraph 16: ‘‘The
standard foreclosure policy for the [plaintiff] was
received by me via e-mail and is attached hereto as
Schedule A.’’ The defendant does not explain why he
would attach or refer to an unadopted draft proposal
seventeen months after the adoption of the final policy
by the plaintiff.
In considering the denial of a motion to dismiss, we
must take the well pleaded facts as true, along with
their necessary implications. Avoletta v. State, supra,
152 Conn. App. 182–83. We also must view the allega-
tions and the existing record in the light most favorable
to the pleader. Id., 182. Finally, we must indulge every
reasonable presumption in favor of jurisdiction. Id., 183.
Viewed through this lens, the plaintiff’s allegations and
the existing record are enough to imply that a properly
adopted standard foreclosure policy existed and the
defendant received notice of the policy after adoption,
making Limberger inapposite to this case. The defen-
dant did not challenge the Routhier affidavit’s suffi-
ciency before the trial court; therefore, we will not look
outside the record to—in essence—find as a factual
matter that the adopted policy was not mailed to the
defendant,3 especially in light of his acknowledgment of
receipt. As such, there can be no plain error warranting
reversal concerning the defendant’s claim that he did
not receive the adopted standard foreclosure policy.4
The defendant also claims that the trial court commit-
ted plain error in failing to dismiss the action because
the plaintiff did not record its standard foreclosure pol-
icy on the Hartford land records, which the defendant
argues violated the plaintiff’s declaration. This claim is
presented for the first time on appeal. To the extent
that we can address the defendant’s plain error claim,
the defendant has not shown that there was an error
‘‘so clear and so harmful that [the] failure to reverse the
judgment would result in manifest injustice.’’ (Internal
quotation marks omitted.) Maio v. New Haven, 326
Conn. 708, 718 n.12, 167 A.3d 338 (2017).5
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint listed several junior lienholders as defendants. Because
this appeal concerns only claims made by Starke, all references to the
defendant are to him alone.
2
The defendant filed his appeal within twenty days after the trial court’s
April 27, 2017 decisions denying the defendant’s motions and approving the
committee sale. Although the defendant’s failure to appeal before the sale
date stripped him of his right of redemption, his appeal is not moot because
he is entitled to appeal from the denial of the motion to open and the
approval of the committee sale; see First Connecticut Capital, LLC v. Homes
of Westport, LLC, 112 Conn. App. 750, 755 n.4, 755–60, 966 A.2d 239 (2009);
and, if successful on appeal, in showing that the court abused its discretion
in denying his motion to open, then his interest in the property liened by
the plaintiff would not be foreclosed.
3
‘‘It is well settled that we do not find facts.’’ (Internal quotation marks
omitted.) In re Kyllan V., 180 Conn. App. 132, 141, 181 A.3d 606, cert. denied,
328 Conn. 929, 182 A.3d 1192 (2018).
4
Because we decide this issue on its merits, we decline to address the
plaintiff’s argument that the General Assembly’s amendment to General
Statutes § 47-202 (31) has retroactive effect, which the plaintiff argues would
make the defendant’s claims academic.
5
The defendant has raised other claims in his brief that are not reviewable
because they are not briefed at all, inadequately briefed or raised for the
first time on appeal. We are under no obligation to review these claims. See
White v. Mazda Motor of America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079
(2014); Gay v. Safeco Ins. Co. of America, supra, 141 Conn. App. 269 n.3.
We decline to do so here. To the extent we addressed the defendant’s claim
concerning the plaintiff’s failure to comply with its declaration, which also
was not raised at the trial court, we did so because the defendant claimed
plain error.
The defendant also claims that the trial court erred in finding that the
motion to dismiss was untimely. He argues that ‘‘jurisdictional defects may
be raised at any time . . . .’’ We reject this claim, however, because the
defendant misconstrues the trial court’s November 13, 2017 memorandum
of decision. The trial court found therein that the defendant’s motion for
articulation was untimely, not his motion to dismiss.