Summary
rejecting collateral attack on default judgment, rendered without affidavit of debt or hearing in damages, because court was competent to entertain action and “[s]uch an error in applying the Practice Book rules governing judgments following default is not even arguably jurisdictional”
Summary of this case from Sousa v. SousaOpinion
(12125)
The named defendant L, against whom a judgment had been rendered for his failure to plead in an action brought by the plaintiff administratrix for money damages, attempted to attack that judgment collaterally in the secondary action here, brought by the plaintiff to foreclose on the judgment lien she had obtained on certain real property owned by L. L had neither taken an appeal from the underlying judgment nor had he filed a motion to open that judgment within the four month period authorized by the rules of practice (377). The referee to whom the matter had been assigned granted the plaintiff's motion for summary judgment and L, following the rendition of a judgment ordering strict foreclosure, appealed. Because, to succeed in a collateral attack on a judgment, the party seeking to avoid it must show that it is not merely voidable but void, and because the procedural error alleged by L to have occurred in the underlying action was not sufficient to render the judgment therein void, held that the trial court did not err in rendering judgment in favor of the plaintiff. Principle of finality of judgments, discussed.
Argued March 7, 1984
Decision released May 1, 1984
Action for the foreclosure of a judgment lien following rendition of a money judgment, brought to the Superior Court in the judicial district of Fairfield at Bridgeport and referred to Hon. George A. Saden, state referee, who granted the plaintiff's motion for a summary judgment, and the court, Jacobson, J., rendered a judgment of strict foreclosure, from which the named defendant appealed to this court. No error.
Mark F. Gross, with whom, on the brief, was Christopher Greenwood, for the appellant (named defendant).
Robert R. Sheldon, with whom, on the brief, was T. Paul Tremont, for the appellee (plaintiff).
This appeal concerns the permissible scope of a collateral attack on a judgment. In the underlying cause of action, the plaintiff, Claire B. Meinket, administratrix of the estate of Edmund L. Meinket, filed suit for money damages against the named individual defendant, Victor Levinson, and two corporate defendants. The defendant appeared pro se and was subsequently defaulted for failure to plead. The trial court, Jacobson, J., rendered judgment for the plaintiff. The plaintiff there upon filed a judgment lien against certain real property owned by the defendant and then brought this action for foreclosure of the lien. The defendant attempted to interpose, as a defense to the foreclosure, his claim that the underlying judgment was invalid because of the plaintiff's failure either to file an affidavit of debt or to produce testimony under oath at a hearing in damages, as required by Practice Book 366. The trial referee, Saden, J., granted the plaintiff's motion for summary judgment and held that the procedural irregularity alleged by the defendant could not be raised in a collateral attack on the prior judgment. The defendant appealed from the trial court's grant of summary judgment and the consequent foreclosure. We find no error.
The corporate defendants were defaulted for failure to appear and judgment was rendered against them. They are not parties to this action.
"[Practice Book] Sec. 366. — PROOF OF DAMAGES ON DEFAULT In all actions of contract when damages are to be assessed after entry of a default, the plaintiff must file an account, copy, statement, or bill of particulars verified by oath, or duly present evidence in court in support of his claim."
The judgment in the initial action reveals that the defendant "appeared on his own behalf on June 1, 1981 and was on notice of all further proceedings . . ." He was then defaulted for failure to plead. The trial court found damages for the plaintiff in the amount alleged in her complaint and rendered judgment against the defendant for $80,157.53. The defendant did not appeal the judgment, nor did he move to open the judgment within the four month period set forth in Practice Book 377 The defendant questioned the procedural propriety of the original judgment for the first time in this collateral proceeding to foreclose on the judgment lien.
Although the defendant claimed in his brief and at oral argument that a default judgment had been rendered against him for failure to appear, the judgment file states clearly that the defendant did appear pro se and was defaulted for failure to plead. For purposes of this appeal, we are bound by the judgment file.
"[Practice Book] Sec. 377. OPENING JUDGMENT UPON DEFAULT OR NONSUIT Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The court shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin him against enforcing such judgment or decree until the decision upon such written motion. "If the court opens a nonsuit entered pursuant to Sec. 363, the court as part of its order may extend the time for filing pleadings or disclosure."
We have strongly disfavored collateral attacks upon judgments because such belated litigation undermines the important principle of finality. Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979); Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969). "`The law aims to invest judicial transactions with the utmost permanency consistent with justice. . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . .'" Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952), quoting 1 Freeman, Judgments (5th Ed.) 305, pp. 602-603 Therefore, in order to succeed in a collateral attack, the party seeking to avoid a judgment must show that it is "not merely voidable but void." Holley v. McDonald, 154 Conn. 228, 234, 224 A.2d 727 (1966); Jensen v. Nationwide Mutual Ins. Co., supra, 260; Rathkopf v. Pearson, 148 Conn. 260, 265, 170 A.2d 135 (1961).
Although we have held that a challenge to a court's subject matter jurisdiction "can be raised at any time . . . and the lack thereof cannot be waived" LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976), quoting Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974); Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); we have also recognized that "[t]he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal." Monroe v. Monroe, supra, 178; Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 560, 468 A.2d 1230 (1983); Vogel v. Vogel, supra, 362-63; 1 Restatement (Second), Judgments 12; James Hazard, Civil Procedure (2d Ed. 1977) 13.16. Under the restatement view, a collateral attack on a judgment in a contested case, such as this one, may raise only limited claims of lack of subject matter jurisdiction. A subsequent challenge to subject matter jurisdiction, when that issue was not actually litigated in the prior action, is authorized only if the litigant can show that "the tribunal's excess of authority was plain or has seriously disturbed the distribution of governmental powers or has infringed a fundamental constitutional protection." 1 Restatement (Second), Judgments 12, comment d; 2 Restatement (Second), Judgments 69; Vogel v. Vogel, supra, 362-63. But see Broaca v. Broaca, 181 Conn. 463, 467-69 and 471-74, 435 A.2d 1016 (1980) (Peters, J., dissenting).
The defendant filed an appearance in the original action and was on notice of all proceedings in that case. He had an ample opportunity to assert any defenses but did not avail himself of that opportunity. His default for failure to plead is, therefore, "substantially similar to a judgment upon a contested action." 2 Restatement (Second), Judgments, c. 5, Introductory Note.
Even a default judgment may be attacked collaterally only for lack of subject matter jurisdiction, lack of territorial jurisdiction or lack of notice. 2 Restatement (Second), Judgments 65.
On this appeal, the defendant attacks the validity of the original judgment on the ground that the trial court rendered judgment without requiring the plaintiff to produce either an affidavit of debt or live testimony at a hearing in damages. The defendant claims that by virtue of this error the judgment was "in excess of [the trial court's] jurisdiction," and therefore unenforceable. We disagree. Such an error in applying the Practice Book rules governing judgments following default is not even arguably jurisdictional. As we have said many times, "[a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it." Monroe v. Monroe, supra, 185; Connecticut Pharmaceutical Assn., Inc. v. Milano, supra, 559; State v. Malkowski, 189 Conn. 101, 105-106, 454 A.2d 275 (1983); Vogel v. Vogel, supra, 363. See also Lacks v. Lacks, 41 N.Y.2d 71, 75, 359 N.E.2d 384, 390 N.Y.S.2d 875 (1976); 1 Restatement (Second), Judgments 11. Lesser procedural irregularities, such as the error alleged on this appeal, do not make a final judgment void. Monroe v. Monroe, supra, 185; 1 Restatement (Second), Judgments 11, comment e; 12, comment b.