author: HEALEY, J.

text:
    BUILDING SUPPLY CORPORATION v. LAWRENCE BRUNOLI, INC., ET AL.
    (13183)
    O’Connell, Schaller and Healey, Js.

      Argued September 25, 1995
    decision released January 16, 1996

      Robert L. Trowbridge, for the appellant (plaintiff).

      John Rose, Jr., with whom were Mary Anne A. Char-ron and, on the brief, John E. Shafer, for the appel-lees (defendants).
   HEALEY, J.

This is an appeal in which the plaintiff, Building Supply Corporation, maintains that the trial court improperly denied its motion to set aside the judgment and to order a new trial on the ground that the judgment was not rendered within 120 days from the completion date of the trial in violation of General Statutes § 51-183L. This dispute has generated several subissues, which we set out below.

On June 8, 1989, the department of transportation awarded a contract in the amount of $7,288,000 for the construction of a repair and maintenance facility in Old Saybrook to the named defendant, Lawrence Brunoli, Inc. The defendant, as the general contractor, agreed to provide all of the material and work necessary to complete the project. The defendant executed a lump sum subcontract in the amount of $2,200,500 with the plaintiff for the performance of the site work on the project. The entire project was divided into 123 work items. It was the responsibility of the plaintiff to do the work set out in items twenty-six through forty-two.

On February 19,1991, the plaintiff initiated this action against the defendant alleging, inter alia, that the defendant had failed to pay the plaintiff timely for the work that the plaintiff had performed on this project, notwithstanding the defendant’s having been paid by the department of transportation for such work. In addition, the plaintiff alleged that the defendant had failed to pay the plaintiff for extra work it had performed for which the defendant had also been paid by the department of transportation. The plaintiff also asserted a claim pursuant to General Statutes § 49-41a et seq. The defendant filed its answer as well as a counterclaim. The defendant’s counterclaim, as later amended, included five counts that alleged, essentially, that the plaintiff had delayed the project, causing the defendant to incur additional expenses resulting in the withholding by the department of transportation, as liquidated damages, of payments due the defendant. The defendant also alleged that the plaintiff had failed to pay certain of its subcontractors in violation of General Statutes § 49-41a.

The trial began on January 5, 1993, and the evidence was concluded on or about March 4,1993. Some miscellaneous matters were handled on March 11, 1993, and April 2, 1993. The trial itself consumed approximately twenty-six days. The total number of exhibits admitted, such as payment requisitions, payment checks, job meeting minutes, inspectors’ reports, photographs, charts and construction orders, was in excess of 1000. Many of the exhibits were duplicates of the same basic underlying activity. The trial court, Dunn, J., requested that counsel each file proposed findings of fact and conclusions of law. Both parties complied, and also filed extensive briefs with appendices. The plaintiff filed its “Plaintiffs Reply Brief’ and its proposed findings of fact on June 4, 1993.

About three months later, the trial court, in a meeting it had set up with counsel, requested that a stipulation be entered extending the time to render its decision by sixty days and that counsel participate in a posttrial settlement conference with another judge to try to settle the case. The written stipulation to extend, which was dated September 20, 1993, stated “counsel . . . hereby stipulate that the time within which the court (Dunn, J.) must render its decision is extended sixty (60) days to December 4, 1993.” Two days later, on September 22, 1993, a “Notice of Pretrial” was issued on the authority of the presiding judge, Langenbach, J. The “pretrial” was to be held on October 12, 1993. This notice directed, inter alia, that “[c]ounsel are ordered to appear with their clients,” that the “[p]arties shall submit pretrial memos,” that “[n]o continuances will be granted” and that “[n]onappearance will result in dismissal or default.” Counsel did attend and participate in the pretrial conference on October 12, 1993. Each counsel, as ordered, submitted a pretrial memorandum to Judge Langenbach, who presided at that conference. The memorandum submitted by the plaintiff at that time was captioned “Plaintiff’s Post-Trial Memorandum.” The October 12, 1993 “pretrial” did not produce a settlement of the case.

On December 2, 1993, counsel for the defendant wrote to Lawrence McLaughlin of the Superior Court clerk’s office, stating that he had “locate [d] the pleading (memorandum) of October 12, 1993, which [the plaintiffs counsel] prepared and which Judge Dunn had referenced recently in his telephone communication with you.” In that letter, counsel for the defendant stated that counsel for the plaintiff had given him a copy of that memorandum on October 12,1993. The defendant’s counsel also maintained in the letter that he had told the plaintiffs counsel that the memorandum should not be considered by Judge Dunn as it was prepared after the trial, was not prepared for a pretrial but for an attempted posttrial settlement and was not required of counsel by the trial court, and the pretrial briefing schedule had expired on June 4,1993. This letter stated in closing, “I would ask that you please relay my position to Judge Dunn. Attached is a copy of my letter to [the plaintiffs counsel] advising him of my intention to object to the court’s considering his October 12, 1993 memorandum. ”

On December 16,1993, the trial court filed its “Memorandum of Decision” in the clerk’s office. While we examine this memorandum more closely below, we note here that the trial court concluded that the plaintiff “did not prove its claim by a preponderance of the credible evidence nor did the defendant Brunoli prove its counterclaim by any preponderance of credible evidence. Brunoli did have a good faith defense under the statute, § 49-41a. Neither side having sustained their burdens, neither is entitled to costs, interest or fees.” The decision also stated: “There were no legal issues of any moment. The case boiled down to one of fact [and] credibility.” It also specifically indicated that “[b]oth counsel were seasoned trial lawyers who comported themselves with decorum and professional competence.” After stating that “[tjhe last memo was filed on October 12, 1993,” the trial court later stated that “the parties were not able to present a coherent finding of fact or proposed judgment to assist the court in evaluating this matter.” On December 21, 1993, the plaintiff filed its motion to set aside the judgment and for a new trial “on the ground that judgment was not rendered within 120 days from the completion of the trial and the agreed extension of said period by the parties. This Motion is made pursuant to Connecticut General Statutes § 51-183b.” This motion was denied without opinion. No motion for articulation was filed. The plaintiff has appealed.

On appeal, the plaintiff claims that the trial court acted improperly in denying its motion for a new trial when the trial court failed to render its judgment within 120 days, as extended by the written stipulation, as required by General Statutes § 51-183b. The plaintiff also claims on appeal that the trial court improperly found against it on every issue of this “lengthy and extensively briefed” construction case, after having it for over six months after briefs were filed, and then “rendering a decision simply stating that [the plaintiff] failed to meet its burden of proof on each and every issue without any analysis whatsoever.”

I

“Section 51-183b is the most recent revision of legislation that, in order to reduce delay and its attendant costs, imposes time limits on the power of a trial judge to render judgment in a civil case.” Waterman v. United Caribbean, Inc., 215 Conn. 688, 691, 577 A.2d 1047 (1990). The statute provides that the trial judge “shall render judgment not later than one hundred and twenty days from the completion date of the trial” as well as that “[t]he parties may waive the provisions of this section.” “A delay in decision beyond that authorized by the statute makes the decision voidable and, absent waiver, requires a new trial. Creative Eye, Inc. v. Raum, 168 Conn. 560, 561-62, 362 A.2d 845 (1975); Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 536-38, 294 A.2d 573 (1972); Borden v. Westport, 112 Conn. 152, 154, 151 A. 512 (1930).” Frank v. Streeter, 192 Conn. 601, 603, 472 A.2d 1281 (1984).

Case law interpreting § 51-183b and its precursors “[has] held that the defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it.” Waterman v. United Caribbean, Inc., supra, 215 Conn. 692. A late judgment has been characterized by our Supreme Court as voidable rather than void, and the lateness of a judgment, if not seasonably objected to, has been permitted to be waived by the conduct or consent of the parties. Id. That consent need not be express but may be implied. Id. In Ippolito v. Ippolito, 28 Conn. App. 745, 749, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992), this court stated: “In Frank v. Streeter, [supra, 192 Conn. 601], our Supreme Court held that the ‘completion date’ of § 51-183b encompasses the filing of briefs after the conclusion of testimony. The Supreme Court reasoned that this interpretation was necessary in order to provide the trial court with ‘the opportunity to deliberate and to reach a thoughtful, reasoned conclusion.’ Id., 605.”

Initially, we must determine “the completion date of the trial.” The plaintiff claims that the completion date was June 4, 1993, the date on which the reply briefs and proposed findings of facts and conclusions of law were filed. It argues that the 120 day period would have ended on October 4, 1993, but that the stipulation of September 20,1993, extended to December 4,1993, the date by which the trial judge was required to render his decision. Therefore, the plaintiff contends that the decision, which was filed on December 15, 1993, was late because that date was beyond the 120 days as extended by the stipulation. This, the plaintiff argues, made the judgment voidable, and, when the plaintiff objected seasonably to the lateness, it became void.

On the other hand, the defendant maintains that “the completion date of the trial” was October 12,1993, and that date commenced the running of the 120 days under § 53-183b. The defendant claims that the “filing” on that date of the plaintiffs “last posttrial memorandum” was considered by the trial court as part of the “post-trial briefing process.” In making this claim, it argues that the trial court never returned that memorandum and never notified the parties that such “filing” would not be considered in making its decision. It also argues that the trial court accepted the plaintiffs October 12, 1993 memorandum over the defendant’s “timely objection.” In further support of this claim the defendant points out that the trial court’s memorandum of decision filed December 16, 1993, specifically states that “[t]he last memo was filed on October 12, 1993.” Therefore, the defendant argues, the December 16, 1993 decision was timely under § 53-183b.

In further support of its claim that the 120 days commenced to run on October 12, 1993, and that the judgment of December 16,1993, was not late, the defendant advances the argument that the plaintiff has, by its conduct, waived its right to object to the lateness of the decision. The waiver argument is couched in terms of implied consent by the plaintiff to the late decision. Without abandoning its claim that the judgment was timely rendered on December 16, 1993, the defendant contends that the plaintiff, not only by “filing” its “Post-trial Memorandum” on October 12, 1993, but also by its participation in the “Post-Trial Settlement Conference” on that date, “waived by implication its right to object to a late decision.” Such conduct, according to the defendant, “undoubtedly implied approval of a delay in the rendering of a decision on the merits of the case.”

We are not persuaded by these claims of the defendant. Therefore, we hold that under the circumstances “the completion date of the trial” in this case was June 4, 1993, that the 120 day period provided by § 51-183b, as extended by the sixty day extension of September 10,1993, required that the trial court render its decision by December 4, 1993. We further hold that the decision of December 16, 1993, was late, and that the plaintiffs seasonable objection caused the revocation of the trial court’s judgment because the trial court had lost jurisdiction of the parties. See Sanchez v. Prestia, 29 Conn. App. 157, 161-62, 612 A.2d 824, cert. denied, 224 Conn. 913, 617 A.2d 167 (1992).

In analyzing the foregoing claims, we begin with the fact that the last date on which briefs ordered by the trial court were to be filed was June 4,1993. Thereafter, the trial judge, in September, 1993, requested that counsel meet with him concerning this case. Both counsel agreed and met with the trial court. At that time the court indicated that it had been working on the case. At that meeting, the trial court asked counsel if they would agree to a sixty day extension of time for the trial court to render its decision. Counsel, as already noted, did execute such a written stipulation, by which the parties agreed to extend the date on which the trial court was required to render a decision to December 4,1993. In addition, the trial court, at the same meeting, inquired if counsel would agree to take part in a “pretrial” with another judge in an effort to settle the case. Counsel agreed to do so. On September 22, 1993, two days after the execution of the sixty day stipulation, the “Notice of Pretrial” before Judge Langenbach issued from the clerk’s office.

We cannot accept the defendant’s claim that “the completion date of the trial” was October 12,1993, and, therefore, the trial court’s December 16,1993 judgment was timely and valid as being rendered sixty-five days after the plaintiff’s “final post-trial memorandum” of October 12, 1993. Putting the defendant’s claim in context requires that we point out that the defendant’s brief on appeal concedes that the plaintiffs objection to the judgment filed on December 21, 1993, six days after the trial court rendered its decision, was seasonable. There we note that the defendant’s brief states: “Clearly, this objection was timely and cannot be a basis for finding that the Plaintiff-Appellant waived the claimed lateness of the judgment.” The defendant maintains, however, that actions taken by the plaintiff “prior to the issuance of the Memorandum of Decision on December 15, 1993 are more than sufficient to imply such a waiver.” As noted, “[wjaiver need not be express, but may consist of acts or conduct from which a waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 252, 618 A.2d 506 (1992); see O’Hara v. State, 218 Conn. 628, 641, 590 A.2d 948 (1991).

The September, 1993 meeting between the trial court and counsel, which occurred some ninety days after that court had this case sub judice, was generated by the trial court. The sixty day written stipulation by counsel dated September 20, 1993, extending the time within which to render a decision from October 4, 1993, to December 4, 1993, was the time period that the trial court requested and that was agreed to by counsel. In its oral argument before us, the plaintiff maintained that the word “must” was purposefully included in the stipulation where it stated “that the time within which the court (Dunn, J.) must render its decision is extended sixty (60) days to December 4,1993.” (Emphasis added.) In his oral argument thereafter, counsel for the defendant never addressed the plaintiffs claim that the word “must” was inserted purposefully in the written stipulation of September 20, 1993. The trial court asked for a sixty day extension and it was agreed to by both counsel. This appears to have been a reasonable request by the trial court. This was a construction contract case with competing claims (by both complaint and counterclaim) that had consumed some twenty-six trial days and included over 1000 exhibits. Moreover, the posttrial briefs filed through June 4,1993, with their attachments, are not only copious and comprehensive, but they set out for decision a number of issues advanced by both the plaintiff and the defendant.

It appears that the defendant argues on its implied consent or implied waiver claim that the plaintiff did not have to join in the requested sixty day extension, and that it could simply have refused to do so just as it could have refused to agree with the trial court’s simultaneous request that counsel agree to a “pretrial” by another judge. This certainly was an option for both the plaintiff and the defendant. Of course, not only the plaintiff but also the defendant were each seeking money damages in this case. Insofar as the plaintiff agreed to the sixty day extension and to participation in what became the October 12, 1993 pretrial, we deem it more reasonable to believe that the plaintiff deferred to the trial court’s requests not only out of respect for its position but also because doing so might yield a practical result, i.e., settlement. “Inherent in the concept of waiver is the notion of assent, which is an act of understanding that presupposes that the party to be affected has knowledge of its rights but does not want to assert them.” Fisette v. DiPietro, 28 Conn. App. 379, 385, 611 A.2d 417 (1992). On this record we find the defendant’s claim of implied consent, including the plaintiffs participation in the “pretrial” conference, unpersuasive.

Once the “Notice of Pretrial” issued on September 22, 1993, on order of Judge Langenbach, counsel were bound to follow its directions. Those directions included counsel appearing with their clients at the designated court location on the date and time specified. Explicit sanctions for nonappearance were set out in the notice of pretrial. Directions also included the instruction that “[p]arties shall submit pretrial memos.” Both parties submitted pretrial memoranda, in accordance with that instruction. That action was hardly voluntary.

The defendant makes much of the “Plaintiffs Post-Trial Memorandum” submitted by the plaintiff to Judge Langenbach at that “pretrial.” The defendant draws attention to its caption; the caption is not significant as apparently claimed. The defendant also contends that the trial court considered its submission to be part of the posttrial briefing process and that it is “unquestionable” that the court utilized the posttrial brief in arriving at its decision. The defendant points out that the trial court’s decision specifically said, “The last memo was filed on October 12, 1993.” Striving to bring its claim within Ippolito v. Ippolito, supra, 28 Conn. App. 745, the defendant then notes that the trial court did not return the plaintiffs October 12,1993 memorandum, did not notify the parties that such “filing” would not be considered in reaching its decision and accepted the submittal of the posttrial memorandum over the defendant’s December 2, 1993 objection. These are somewhat disingenuous arguments for the defendant to make in light of the defendant’s December 3, 1993 letter of objection. In that letter, counsel for the defendant stated that it was “[his] position that Judge Dunn ought not to consider [the plaintiffs October 12, 1993 memorandum] given that it was prepared well after the end of trial; that it was prepared not for a ‘pretrial’ but for the purposes of an attempted post-trial settlement; that it was not required of counsel by the trial court; and that the post-trial briefing schedule expired June 4,1993.” (Emphasis in original.) Such antithetical statements demonstrate the defendant’s recognition that the plaintiffs October 12, 1993 memorandum should not have been provided to Judge Dunn or considered by him in reaching his decision. It was not a posttrial brief that the trial court had requested or ordered and was clearly intended only for the settlement discussions of October 12, 1993, with Judge Langenbach. In any event, this October 12, 1993 memorandum of the plaintiff was a verbatim extract of the plaintiffs brief filed with the trial court more than five months earlier, on May 23, 1993. No additional arguments were offered or information provided by the plaintiffs October 12, 1993 memorandum.

In sum, we hold in this case that “the completion date of the trial” was June 4, 1993; that the trial court’s decision of December 16, 1993, was late, in violation of § 51-183b; that the plaintiffs motion of December 21,1993, was “seasonable”; and, therefore, that the trial court’s decision of December 11,1993, was void, as the court had lost the power to exercise jurisdiction over the parties before it.

II

We turn to the effect of the failure of the plaintiff to file a motion for articulation with the trial court under Practice Book § 4051 on the relief it seeks on this appeal, which is a new trial. In seeking a new trial, the plaintiff, referring to the trial court decision, claims that the reasonable expectations of a party submitting a dispute to the judicial system for determination is that the decision rendered will address the issues presented to it for its resolution. Pointing to the detailed briefs filed together with the proposed findings of fact and conclusions of law of each party and the number of issues set out by each party in what is concededly a lengthy and factually complex construction case, the plaintiff strenuously argues that the trial court did not address the issues submitted by the litigants for its determination. Rather, the plaintiff maintains that the trial court’s decision disposes of all the issues presented to it for its resolution with a one sentence holding that the plaintiff and the defendant failed on each and every issue presented in carrying the burden of proof. In addition, the plaintiff argues that the trial court’s comment in its decision that “[f|he parties were not able to present a coherent finding of fact or proposed judgment to assist the court in evaluating this matter” rendered filing a motion for articulation moot.

We begin our resolution of the issue of the plaintiffs failure to file a motion for articulation under § 4051 by reiterating that it is the duty of the appellant, the plaintiff in this case, to provide us with a record adequate to afford review. Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 553, 636 A.2d 1370, cert. granted, 229 Conn. 907, 640 A.2d 120 (1994) (appeal withdrawn, October 17, 1994); North Park Mortgage Services, I'nc. v. Pinette, 27 Conn. App. 628, 632, 608 A.2d 714 (1992). It has been repeatedly stated that “ ‘[wjhere the factual or legal basis of the trial court’s decision is unclear, the appellant should file a motion for articulation pursuant to Practice Book § 4051. Thiel Realty Corporation v. Culligan Water Conditioning Co., 9 Conn. App. 191, 193, 517 A.2d 1052 (1986).’ Elliss v. Ronning, 11 Conn. App. 662, 664, 528 A.2d 1174 (1987).” Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992); see Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 164, 622 A.2d 536 (1993). With reference to the failure of an appellant to file a motion for articulation where appropriate to do so, it is clear that “[ujnder normal circumstances,” appellate courts will not act to correct a deficiency the appellant should have remedied. North Park Mortgage Services, Inc. v. Pinette, supra, 628; Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 296, 533 A.2d 208 (1987).

The circumstances of this case, however, lead us to conclude that the failure of the plaintiff to file a motion for articulation does not preclude the relief it seeks on this appeal. As stated previously, decisional law interpreting § 51-183b and its precursors has “held that the defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it.” Waterman v. United Caribbean, Inc., supra, 215 Conn. 692, and cases cited therein. Our law has characterized a late judgment as voidable rather than void and has permitted the lateness of a judgment to be waived by the conduct or the consent of parties. Id., 692-93; Sanchez v. Prestia, supra, 29 Conn. App. 161; see Creative Eye, Inc. v. Raum, supra, 168 Conn. 562. Where, however, as here, there was no waiver of the statutory provisions of § 51-183b and no consent, as evidenced by the plaintiffs seasonable motion of Deeember21,1993, for a new trial, the trial court, as we have said previously, “lost jurisdiction of the parties” as of December 4, 1993, the last date the trial court could have rendered its decision under § 51-183b. Waterman v. United Caribbean, Inc., supra, 691; Sanchez v. Prestia, supra, 161-62. Our appellate courts have held that “[a] delay in decision beyond that authorized by the statute makes the decision voidable and, absent waiver, requires a new trial. Creative Eye, Inc. v. Raum, [supra, 561-62]; Bogaert v. Zoning Board of Appeals, [supra, 162 Conn. 536-38]; Borden v. Westport, [supra, 112 Conn. 154].” Frank v. Streeter, supra, 192 Conn. 603; Sanchez v. Prestia, supra, 161. Under the circumstances, the seasonable filing by the plaintiff of its December 21, 1993 motion served, in legal contemplation, to transform the trial court’s late (and voidable) judgment into one that was void for lack of jurisdiction. The plaintiff could have filed a motion for articulation but it chose not to, and, in filing the motion it did file, the legal consequences previously described occurred. Having elected to proceed as it did, it would have been inappropriate for the plaintiff to file a motion for articulation. As we said in Sanchez, where the trial court lost jurisdiction of the parties in a § 51-183b case, “[t]he consequence of the trial court’s failure to render a decision within the statutory time limit is the revocation of the judgment eventually rendered, and the concomitant necessity for a new trial. Waterman v. United Caribbean, Inc., supra [691]; Frank v. Streeter, supra [603].” Sanchez v. Prestía, supra, 161-62.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 51-183b provides: “Judgments in civil actions. Time limit. Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       Continental Insurance Company, which had posted a payment bond on behalf of Lawrence Brunoli, Inc., was also named as a defendant in this case. We refer in this opinion to Lawrence Brunoli, Inc., as the defendant.

       General Statutes § 49-41a provides: “Enforcement of payment by general contractor to subcontractor and by subcontractor to his subcontractors, (a) When any public work is awarded by a contract for which a payment bond is required by section 49-41, the contract for the public work shall contain the following provisions: (1) A requirement that the general contractor, within thirty days after payment to the contractor by the state ora municipality, pay any amounts due any subcontractor, whether for labor performed or materials furnished, when the labor or materials have been included in a requisition submitted by the contractor and paid by the state or a municipality; (2) a requirement that the general contractor shall include in each of its subcontracts aprovision requiring each subcontractor to pay any amounts due any of its subcontractors, whether for labor performed or materials furnished, within thirty days after such subcontractor receives a payment from the general contractor which encompasses labor or materials furnished by such subcontractor.

        “(b) If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest-bearing escrow account in a bank in this state, provided the general- contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.
      “(c) No payment may be withheld from a subcontractor for work performed because of a dispute between the general contractor and another contractor or subcontractor.
      “(d) This section shall not be construed to prohibit progress payments prior to final payment of the contract and is applicable to all subcontractors for material or labor whether they have contracted directly with the general contractor or with some other subcontractor on the work.”

       The plaintiff filed proposed findings of fact that contained 131 separate paragraphs together with fourteen separate conclusions based on its proposed findings of fact. The defendant filed proposed findings of fact that contained 153 separate paragraphs together with twenty-three separate conclusions based on its proposed findings of fact.

       The plaintiff filed two briefs.

       The exact wording of the stipulation was: “In the above-captioned matter, counsel for the parties hereby stipulate that the time within which the court (Dunn, J.) must render its decision is extended sixty (60) days to December 4, 1993.”

       The “Notice of Pretrial” provided: “The above captioned case is assigned in Hartford for pretrial. Counsel are ordered to appear with their clients. Insurance company personnel with authority to settle are to be present. Parties shall submit pretrial memos. No continuances will be granted. Nonappearance will result in dismissal or default. Report to caseflow office, Room 111, 95 Washington Street, Hartford for assignment at 2:00 PM on 10/12/93. No phone calls will be accepted by the Clerk’s Office.
      Hon. John Langenbach Presiding Judge”

       According to the docket sheet of the trial court in the record before us, the “Plaintiffs Post-Trial Memorandum” was not filed in the Superior Court clerk’s office as had the three briefs filed by the parties in accordance with the briefing schedules set by the trial court. Rather, it was submitted to Judge Langenbach on the date of the “pretrial” of October 12, 1993.

       The trial court also found no liability on Continental Insurance Company, the defendant’s bonding company. See footnote 2.

       That motion in it entirety stated: “Motion to Set Aside Judgment and for New Trial
      “The Plaintiff hereby moves that the judgment in the referenced matter be opened and set aside and that an order enter for a new trial on the ground that judgment was not rendered within 120 days from the completion of the trial and the agreed extension of said period by the parties. This motion is made pursuant to Connecticut General Statutes § 51-183b.”

       The defendant has not appealed.

       This case had already been “pretried” before the trial.

       Actually, the memorandum that the plaintiff submitted to Judge Langenbach per his order of September 22, 1993, at the “pretrial” of October 12,1993, bore the latter date and was captioned “Plaintiffs Post-Trial Memorandum.”

       The trial court filed its decision on Thursday, December 16, 1993, and the plaintiff filed its objection to it on Tuesday, December 21, 1993.

       “It hardly seems necessary to point out that there is an overriding public interest in settling and quieting litigation.” Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976).

       Regardless of its label, this memorandum plainly constituted the plaintiffs compliance with the order to “submit pretrial memos” and nothing more than that is fairly disclosed in the record before this court. In any event, in this case, the label on it is not controlling. See Home Oil Co. v. Todd, 195 Conn. 333, 342, 487 A.2d 1095 (1985).

        Ippolito v. Ippolito, supra, 28 Conn. App. 745, does not avail the defendant. In Ippolito, the completion date of the trial under General Statutes § 51-183b was at issue. In that case, the state trial referee gave “inconsistent statements” at the close of the evidence on the filing of reply briefs. He noted that if either counsel sought to file a reply brief and notified opposing counsel, then he would “allow ‘both sides an opportunity to file reply briefs.’ ” Id., 748. Later, after setting a date for the filing of briefs, he stated that only one memorandum of law should by filed by the parties. On January 23, 1991, the plaintiff filed her brief and the defendant filed his brief on January 24, 1991. On January 29, 1991, the defendant filed a reply brief. The state trial referee issued his memorandum of decision on May 29, 1991. Id. In
        Ippolito, we observed that “[t]he fact that the state trial referee did not return the reply brief or notify the parties that he would not accept the reply brief indicate[d] 1hat he considered it part of the posttrial briefing process.” Id., 750. We held that the state trial referee’s decision was timely under § 51-183b. Id.
      The case before us is clearly distinguishable from Ippolito. In that case, the reply brief of January 29,1991, was voluntarily filed in the clerk’s office in accordance with the option to do so given by the trial court itself. In the case before us, the plaintiff was ordered to submit (not file) the October 12, 1993 memorandum by the order of the presiding judge, not the judge who tried the case as in Ippolito. In that case, only the trial court was involved throughout in issuing the orders concerning briefing, whereas in this case another judge, not the trial judge, was involved with the October 12, 1993 memorandum. In Ippolito, it was clearly intended that the filed reply brief be available to the trial court; in this case it was not so intended. Ippolito lacks comparative significance to the case before us.

       A comparison of the plaintiffs briefs of May 23, 1993, and October 12, 1993, shows that the October memorandum is in fact a verbatim extract from the earlier one. The textual matter is the same, the titles of each are different and the heading “The Claim” on the earlier brief was changed to “Damages” on the later one. The later brief has several cross-outs that are not substantive.

       The plaintiff refers to that part of the trial court decision that states: “In conclusion, [the plaintiff] did not prove its claim by a preponderance of credible evidence nor did the defendant Brunoli prove its counterclaim by any preponderance of credible evidence . . . .” See General Statutes § 49-41 (a).

       We have already had occasion in part I of this opinion to refer to the defendant’s concession in its brief that “[t]he Plaintiff-Appellant’s objection to the judgment below . . . filed on December 21, 1993, six days after the decision was rendered by the trial court” was such, as the defendant continues, that “[cjlearly, this objection was timely and cannot be a basis for finding that the Plaintiff-Appellant waived the lateness of the judgment. ” The defendant did claim that “[hjowever, actions taken by the Plaintiff-Appellant prior to the issuance of the Memorandum of Decision on December 15, 1993, are more than sufficient to imply such a waiver.”

       Because the plaintiff did not file a motion for articulation, we are not called upon to determine whether in that event such conduct by the plaintiff could fairly be considered a waiver of any objection to the late trial court judgment.

       Our disposition of the articulation issue does not require us to reach and discuss the other matters touching this issue, which we note the plaintiff has briefed at length.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    MARY S. MEEHAN v. TIMOTHY MEEHAN
    (13300)
    Dupont, C. J., and O’Connell and Landau, Js.

      Argued October 3, 1995
    decision released January 16, 1996

      Reuben S. Midler, for the appellant (defendant).

      Tony Ghecas, for the appellee (plaintiff).

      John G. Howell III, for the minor children.
   O’CONNELL, J.

The defendant appeals from the judgment of the trial court denying his motion that the plaintiff be held in contempt of court. The defendant also appeals from the modification of a prior custody and visitation order. The defendant claims that the trial court improperly (1) relied on the plaintiffs fears as a basis for denying the defendant’s motion for contempt, (2) modified a prior pendente lite order of custody and visitation as part of its decision on the defendant’s motion for contempt, (3) made factual findings and conclusions of law that were not supported by the facts and law, and (4) restricted the defendant’s right to examine witnesses and present evidence. We affirm the judgment of the trial court.

The parties to this appeal are presently engaged in an action to dissolve their marriage, which was pending when we heard this appeal. All of the issues involved in this appeal relate to custody. Earlier in the proceedings, the court had awarded joint custody pendente lite and ordered the plaintiff not to remove the parties’ two young children from the family residence. Thereafter, the defendant filed a series of motions for contempt.

This appeal arises from the denial of the defendant’s sixth motion for contempt in which the defendant alleged that the plaintiff violated the order by removing the children from the home on November 8, 1993. The trial court denied the motion, finding that the plaintiff was not in contempt when she removed the children from the residence on the evening of November 8 because the removal arose out of fear and her sincere belief that it was necessary to protect the children. The trial court orally modified the order that prohibited the plaintiff from removing the children from the home and instead required the plaintiff to bring the children to the home each day from 10 a.m. to 4 p.m. Following a subsequent hearing, the trial court confirmed this modification of the prior order in a written memorandum of decision.

I

The defendant claims that the trial court improperly concluded, as a matter of law, that the plaintiffs fears constituted a valid basis for disregarding the order of the court. It is axiomatic that a person may not pick and choose which court orders he will obey. See, e.g., Tufano v. Tufano, 18 Conn. App. 119, 124, 556 A.2d 1036 (1989). A party’s opinion concerning the necessity for a particular order does not excuse his disobedience. Tatro v. Tatro, 24 Conn. App. 180, 188, 587 A.2d 154 (1991). Relying on these precedents, the defendant argues that the plaintiff was guilty of per se contempt of court because she removed the children from the family residence on November 8.

The defendant’s argument, however, disregards the line of cases that holds that a contempt finding is not automatic and depends on the facts and circumstances underlying it. Dukes v. Durante, 192 Conn. 207, 228, 471 A.2d 1368 (1984). “It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order. [I]n an appeal from a judgment of civil contempt, our review is technically limited to questions of jurisdiction, such as whether the court had authority to impose the judgment inflicted and whether the act or acts [involved] could constitute a contempt.” (Internal quotation marks omitted.) Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985); see Bunche v. Bunche, 36 Conn. App. 322, 325-26, 650 A.2d 917 (1994). The fact that an order has not been complied with fully does not dictate that a finding of contempt must enter. Marcil v. Marcil, supra, 405.

Furthermore, “ ‘[the] trial court is endowed with broad discretion in domestic relations cases. ... As an appellate court, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . (Citations omitted.) Griffiths v. Griffiths, 12 Conn. App. 807, 531 A.2d 1203 (1987); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). The purpose of our analysis is to decide whether the trial court’s conclusion was reasonable. Because the trial court has the advantage of reviewing and assessing the demeanor, attitude and credibility of the witnesses, it is better equipped than we are to assess the circumstances surrounding the family proceeding before it. Griffiths v. Griffiths, supra, 807. Every reasonable presumption will be made in favor of the court’s proper exercise of discretion. Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 48, 634 A.2d 870 (1993).

The trial court made the following findings, which it considered adequate to explain the plaintiffs failure to obey the court order. After having been in court on November 8, the parties returned to the family residence. That evening, the defendant, upon finding one child sleeping in her mother’s bedroom, began to turn and shake the doorknob to the room. In a loud and forceful voice, the defendant uttered profanity and demanded that the plaintiff open the door and return the child to her own bed. Believing that she was being threatened, the plaintiff telephoned the police, who arrived to find her crying, shaken, and afraid. The plaintiff remained visibly upset even after the police directed the defendant to leave the house for the night. Still alarmed at the defendant’s behavior the next morning, the plaintiff removed herself and the two children from the home to a women’s shelter. On the basis of those findings, the trial court concluded “that while [the plaintiff] violated the court’s order barring her removal of the children from the home, she did so under circumstances that indicated her violation was not contemptuous. When she acted, she acted out of fear and a desire to protect her children.” We therefore conclude that the trial court did not abuse its discretion in finding an adequate basis to explain the plaintiffs noncompliance with the prior court order.

II

The defendant next argues that the trial court improperly modified a prior court order concerning temporary custody at the hearing on the defendant’s sixth motion for contempt. The pendente lite custody orders relevant to this proceeding commenced June 11, 1993. On that date, the trial court, Bassick, J., vacated a prior restraining order that barred the defendant from the residence. As part of its June 11 oral order, the trial court remarked, “I don’t want the children removed from the house until further order of the court.” It is this order that the defendant contends was improperly modified.

On November 11,1993, the trial court, Thim, J., orally modified the June 11 order and allowed the plaintiff to remove the children from the house as long as she returned them each day from 10 a.m. to 4 p.m. The trial court continued the hearing until December 3, at which time the defendant argued that the trial court could not modify Judge Bassick’s June 11 order. Judge Thim disagreed and issued the written memorandum of decision that is the subject of this appeal.

The defendant contends that the trial court’s modification of the original order at the contempt hearing constituted an improper opening and reconsideration of the prior pendente lite custody order. This argument, however, ignores the broad equitable powers of the trial court in family matters.

“The power of a domestic relations court to act equitably ‘is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.’ ” Gallagher v. Gallagher, 11 Conn. App. 509, 513, 528 A.2d 379 (1987), quoting Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975). Decision-making in family cases requires a “ ‘flexible, individualized adjudication of the particular facts of each case ....’” Weidenbacher v. Duclos, 234 Conn. 51, 76, 661 A.2d 988 (1995), quoting Seymour v. Seymour, 180 Conn. 705, 710, 433 A.2d 1005 (1980). In this case, the trial court was presented with an increasingly hostile situation and used its powers of equity to fashion relief for the parties.

This case presented the trial court with a situation in which the plaintiff had moved to a women’s shelter with her two children because she feared the defendant. The trial court found that the hostility and enmity between the parties were so severe that it was unreasonable to expect them to remain overnight under the same roof. Common sense is not to be left at the courthouse door. State v. Perez, 10 Conn. App. 279, 291, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987). On the basis of the facts and circumstances before us, we conclude the trial court acted within its equitable powers when it modified the custody order.

Ill

Our discussion of the first two issues disposes of the defendant’s third claim that the trial court made factual findings and conclusions of law not supported by the facts and law.

IV

In his final claim, the defendant argues that the trial court unduly restricted his right to examine witnesses and to present evidence by restricting the contempt hearing to the events of November 8 and 9, 1993. The defendant insists that because he alleged in his motion that the plaintiffs contempt was the result of a pattern of conduct, he was entitled to present evidence in support of this theory.

It is well established that “[e]vidence is admissible only to prove . . . those facts directly in issue or those probative of matters in issue . . . .” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.1.2, p. 226; Adams v. May, 32 Conn. 160, 167-69 (1864). The trial court held that the sole issue before it was the plaintiffs alleged contempt based on the events of November 8. In so holding, the trial court concluded that evidence of the plaintiffs pattern of contempt was not material to this limited purpose and allowing the defendant to present such evidence would have the effect of relitigating the entire custody issue instead of only the contempt. Accordingly, the trial court limited the evidence to the conduct of the parties on the night of November 8 and disallowed evidence purporting to show a pattern or scheme of conduct by the plaintiff.

“ ‘The trial court has broad discretion in determining the relevancy of evidence.’ ... ‘Its ruling will only be overturned if this court finds an abuse of discretion.’ ” (Citations omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 31, 632 A.2d 1134 (1993). On the basis of the issue before the court and the procedural history of the case, we conclude that the court did not abuse its discretion in refusing to allow the defendant to present pattern evidence.

The defendant, however, is not without a forum in which to present this evidence. The case is currently in apostare to go to trial. In that forum, the final custody award could be litigated and a judgment of dissolution rendered. Although the case has been pending for more than thirty-four months, the defendant has chosen continuously to litigate temporary pendente lite orders rather than to proceed to trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although a final judgment has not yet been rendered in this case, temporary custody orders are immediately appealable. Madigan v. Madigan, 224 Conn. 749, 757, 620 A.2d 1276 (1993).

       We axe not persuaded by the defendant’s argument that the plaintiff must be found in contempt because the evidence showed that only the plaintiff and not the children were threatened or in danger.

       See footnote 4.

       The relevant part of the trial court’s ruling on admitting evidence of a scheme or pattern of conduct on the plaintiffs part is as follows: “I see that allegation in there, but we have the gist of the motion [in] the very beginning, that she moved the children from the house, and then there are various evidentiary allegations, and amongst some conclusory statements is that this is part of a scheme to procure her desires, irrespective of the court order and the facts. If we’re going to talk about a scheme, we’re going to be here for two months. You know, other judges have already spent a month on a hearing on one issue. If we’re going to talk about what is a claimed scheme, we’re going to be here for months. She removed the children from the house. Was that justified?”

       The defendant concedes that the progress of this case has been delayed solely because of litigation surrounding pendente lite custody matters. Subsequent to the motion that is the subject of this appeal, the defendant filed numerous additional motions attacking the pendente lite awards rather than proceeding to trial.


author: FOTI, J.

text:
    FARMERS AND MECHANICS BANK v. PHILLIP B. KNELLER ET AL.
    (14071)
    O’Connell, Foli and Spear, Js.

      Argued September 12, 1995
    decision released January 16, 1996

      Richard B. Polivy, with whom, on the brief, were Cheryl Gabes DeGregorio and Mei-Wa Cheng, for the appellant (defendant Edward J. Przybysz).

      Theodore V. Raczka, with whom, on the brief, were Nancy Conaway-Raczka and John F. Shaw, for the appellee (plaintiff).
   FOTI, J.

This is an appeal taken by the defendant Edward J. Przybysz from a judgment of strict foreclosure, the granting of a motion for deficiency judgment and the attendant valuation of the subject real property. The defendant alleges that the trial court improperly (1) retracted its order to reset the law day, (2) denied the defendant’s motion to dismiss the plaintiffs motion for deficiency judgment, and (3) admitted the testimony of the plaintiffs appraiser. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On or about December 29, 1989, the defendants Phillip B. Kneller and Przybysz executed a promissory note in the amount of $205,000 in favor of the plaintiff. The note was secured by an open-end mortgage on premises at 222-224 Pearl Street, Middle-town. Kneller and Przybysz defaulted on the note, and, as a result, the plaintiff instituted this foreclosure action.

On October 5,1992, the trial court rendered judgment of strict foreclosure in the plaintiffs favor and set a law day of October 28, 1992. On October 27, 1992, the defendant filed motions to open the judgment, to enjoin the passing of the October 28, 1992 law day and to present evidence. The October 28,1992, law day passed without the trial court’s hearing or acting on the defendant’s motions and, without the defendant’s redeeming his interest in the subject property. Thereafter, on November 2, 1992, the plaintiff filed a motion for deficiency judgment dated October 30, 1992, pursuant to General Statutes § 49-14 (a).

On November 9, 1992, the trial court, Higgins, J., conducted a hearing regarding the defendant’s motions. The plaintiff objected to both the defendant’s motion to open the judgment and his motion to enjoin the law day. The trial court denied the defendant’s motion to open the judgment of strict foreclosure and his motion to enjoin the October 28, 1992 law date. Judge Higgins then reset the law day to December 9,1992, by ordering, “December 9th, owners of the equity, subsequent days, junior encumbrancers, inverse order of priority.” The defendant did not redeem on or before the December 9, 1992 law day.

On January 11, 1993, the plaintiff filed a certificate of foreclosure in the Middletown land records certifying that title to the subject property had vested in the plaintiff on December 10,1992. On that same day, the plaintiff attempted to file a motion for deficiency judgment dated January 6, 1993. The clerk’s office date stamped the motion January 11, 1993, but later crossed out the date stamp and returned the motion to the plaintiff for the lack of an order and certification sheet. The plaintiff subsequently refiled the motion with the required order and certification sheet. The clerk’s office date stamped the plaintiffs motion for deficiency judgment as being filed on January 14, 1993.

On or about March 5, 1993, the defendant filed a motion to dismiss, a motion to impose fees and costs and an objection to the January 14, 1993 motion for deficiency judgment alleging untimely filing, pursuant to the thirty day limitation stated in § 49-14. On March 10, 1993, the plaintiff sought to reclaim its motion for deficiency judgment dated October 30, 1992, for the short calendar.

The plaintiff filed a memorandum of law in opposition to the defendant’s motion to dismiss on March 22,1993. On that same day, the defendant filed an objection to the plaintiffs reclaim of its motion for deficiency judgment dated October 30, 1992.

In a memorandum of decision on objections to motions for deficiency judgment dated July 9, 1993, the trial court, Higgins, J., overruled the defendant’s objection to the plaintiffs motion to reclaim its motion for deficiency judgment. The trial court’s memorandum of decision held that it had “erred in hearing the defendant’s motion to reopen judgment on November 9, 1992, and in resetting the law day for December 9,1992.” The trial court also concluded that “it had no authority to reset the law day to December 9, 1992, the operative law day for the purposes of this foreclosure action was October 28, 1992.” The trial court concluded that the plaintiffs October 30, 1992 motion for deficiency judgment was timely filed and could be reclaimed. On October 29, 1993, the plaintiff filed an amended certificate of foreclosure on the Middletown land records to correct the date on which title vested in the plaintiff to correspond to Judge Higgins’ decision.

Subsequently, on May 10, 1994, the trial court, R. O’Connell, J., conducted a full evidentiary hearing on the plaintiffs October 30, 1992 motion for deficiency judgment. The trial court issued a written memorandum of decision, dated September 16, 1994, granting a deficiency judgment in favor of the plaintiff. The trial court determined that title had vested in the plaintiff on October 29, 1992, that the value of the subject property on that date was $180,000, and that the mortgage debt on that date was $235,990.13. The trial court then rendered a deficiency judgment against the defendant in the amount of $60,990.13, plus interest from October 29, 1993. Further, the trial court awarded the plaintiff additional attorney’s fees of $5000. The defendant appealed from that judgment.

I

The defendant first claims that the trial court improperly retracted its order to reset the law day. The defendant argues that the trial court extended and reset the law day in accordance with the consent and agreement of the parties.

The defendant maintains that the transcript from the November 9, 1992 hearing clearly demonstrates that both parties knew that the original law day had passed and mutually agreed to extend and reset the law day. The defendant stresses that despite the trial court’s denial of his motion to open the judgment and to enjoin the law day, that court left all aspects of the judgment of strict foreclosure intact, and merely extended and reset the law day in accordance with the express consent of the parties.

The defendant acknowledges that because the trial court did not disturb any aspect of its judgment of strict foreclosure, any question of error is limited to the extension and resetting of the law day. Moreover, the defendant concedes that if General Statutes § 49-15 is strictly construed, an opening of the judgment under these circumstances would be deemed improper. The defendant correctly argues, however, that the courts of this state have long held that the otherwise erroneous opening of a judgment of strict foreclosure, after the time fixed by statute, is an error that may be waived. See Ferguson v. Sabo, 115 Conn. 619, 622-23, 162 A. 844 (1932). Consequently, the defendant reasons, the consent of the parties to the resetting of the law day, constituted a waiver by the parties of any error the court may have committed in resetting the law day, thereby giving legal effect to the trial court’s action.

The defendant insists that the plaintiffs acceptance of the trial court’s order, as well as the plaintiffs subsequent conduct, are convincing proof that the parties acquiesced in the resetting of the law day, thereby effecting a waiver by the parties of the provisions of § 49-15. The specific behavior exhibited by the plaintiff on which the defendant relies to substantiate his claim that the plaintiff waived the provisions of § 49-15, is the plaintiffs lack of subsequent objection to the resetting of the law day, the plaintiffs filing of the certificate of foreclosure, which certified the vesting of title as of December 10, 1992, and the plaintiffs second filing of a motion for deficiency judgment on January 14, 1993. The defendant argues that all of these facts demonstrate that the plaintiff placed no reliance on the October 28, 1992 law day, accepted the December 9, 1992 law day as the only true law day for purposes of this suit and conducted itself accordingly, fully embracing the court’s action in resetting the law day and waiving the provisions of § 49-15. We find the defendant’s reliance on the theory of consent and waiver by the parties to the provisions of § 49-15 unpersuasive and without basis in Connecticut law.

The dispositive controversy in this case is whether the defendant’s motion to open precipitated an automatic stay that tolled the running of the law days. It is a well settled principle of law in this state “that the mere filing of a motion to reopen the judgment does not result in an automatic stay. ” Brooklyn Savings Bank v. Frimberger, 29 Conn. App. 628, 631, 617 A.2d 462 (1992); Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 349, 579 A.2d 1054 (1990); see Practice Book § 4046.

Our Supreme Court examined the effect of timely filing a motion to open after a judgment of strict foreclosure has been rendered in Farmers & Mechanics Savings Bank v. Sullivan, supra, 216 Conn. 341. The court noted that the trial court in that case had relied on a legal principle from a leading Connecticut treatise, D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.01C, which stated, “[a] critical factor to be recognized in connection with a motion to reopen a judgment of strict foreclosure is that the motion must be heard, and not merely filed, prior to the vesting of title.” The Supreme Court qualified this legal proposition by adding that “[t]his observation would be correct if limited to a motion made after the expiration of the time to appeal from the initial foreclosure judgment, because no automatic stay would result from its filing.” Farmers & Mechanics Savings Bank v. Sullivan, supra, 349.

In Sullivan, the Supreme Court held that a motion to open had been filed within the time for appeal from the judgment of strict foreclosure, thereby effecting an automatic stay and nullifying the original law day. In this case, however, the facts are dissimilar- from those in Sullivan. Here, the trial court rendered judgment of strict foreclosure on October 5, 1992. Pursuant to Practice Book § 4009, the defendant had twenty days in which to file an appeal from the trial court’s judgment of strict foreclosure. The defendant allowed the twenty day appeal period to expire without filing an appeal. After the appeal period had expired, the defendant then filed a motion to open the judgment, but failed to secure a hearing date before the law date passed.

When a motion to open a judgment of strict foreclosure has not been filed within the time limited to appeal, no stay will come into effect. In this situation, or where the automatic stay pursuant to Practice Book § 4046 has been terminated, a law day may pass and if the defendant fails to redeem, the equity of redemption is extinguished and title to the property vests absolutely in the plaintiff, whether a hearing on a motion to open is pending. Brooklyn Savings Bank v. Frimberger, supra, 29 Conn. App. 631-32; Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 167, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). In this case, the defendant did not file his motion to open until after the expiration of the time to appeal from the initial foreclosure judgment. Consequently, the defendant’s motion to open, filed subsequent to the appeal period, did not produce a stay; nor did a stay result from the defendant’s filing of a motion to enjoin the effect of the law day. Because the trial court did not hear either of these motions prior to the October 28, 1992 law day, title to the property vested absolutely in the plaintiff on October 29, 1992, pursuant to § 49-15.

The order of the trial court, setting a new law day after the prior law day had passed without being stayed, was void ab initio and subject to both direct and collateral attack. Broaca v. Broaca, 181 Conn. 463, 467, 435 A.2d 1016 (1980); Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969). “It is an acknowledged principle of . . . every court in the world, that not only the decisions, but eveiy thing done under the judicial process of courts, not having jurisdiction, are, ipso facto, void.” (Internal quotation marks omitted.) Broaca v. Broaca, supra, 468.

We conclude that on October 29, 1992, the outstanding right of redemption by the defendant had been foreclosed and title became absolute in the plaintiff. Therefore, the trial court lacked jurisdiction to reset the law days.

We turn now to the defendant’s contention that by mutual assent, the parties waived the provisions of § 49-15. An examination of this court’s discussion of the issue of waiver in Citicorp Mortgage, Inc. v. Tarro, 37 Conn. App. 56, 654 A.2d 1238 (1995), serves to dispel the defendant’s misguided understanding of the requirements of a waiver by the parties. In that case, this court reiterated the well established standards for waiver in Connecticut, stating, “waiver involves the intentional relinquishment of a known right. . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it. . . . Moreover, a party claiming waiver has the burden of proving it.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 60.

In Tarro, this court held that the trial court had improperly concluded that the defendant’s filing of subsequent pleadings constituted a waiver: “The defendant’s filing of pleadings after the judgment of dismissal did not waive the four-month period of [General Statutes] § 52-212a. Any subsequent pleadings by the defendant could not logically have constituted a waiver. Rather, those pleadings were no more than a necessary attempt to defend his interests in this litigation. The defendant had no choice but to file requisite pleadings and motions after the . . . opening of the judgment. At that time, the court’s decision became the law of the case.” (Emphasis added.) Id., 61.

In applying the legal principles of Tarro to the facts of this case, we conclude that the plaintiff did not waive the statutory provisions of § 49-15. Through its counsel, the plaintiff objected to the defendant’s motion to open the judgment of strict foreclosure and the defendant’s motion to enjoin the passing of the law day, and the trial court denied these motions. After denying the defendant’s motions, the trial court then improperly reset the law day. The plaintiffs attorney’s acquiescence to the trial court’s action “hardly constitutes the intentional relinquishment or abandonment of a known right or privilege, which is the cornerstone of a claim of waiver. See State v. Ramos, 201 Conn. 598, 603, 519 A.2d 9 (1986), citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).” Citicorp Mortgage, Inc. v. Tarro, supra, 37 Conn. App. 61. This court is in accord with the plaintiffs contention that subsequent documents filed in court or recorded on the land records by the plaintiff did not constitute a waiver of any right, and were no more than a necessary attempt to defend the plaintiffs interests in the litigation because on July 9, 1993, the revised, but incorrect, law date was a part of the law of the case. It would be unfair to penalize the plaintiff for conforming its behavior to the court’s order. Under all of the circumstances, including the defendant’s motion to open the judgment and motion to enjoin, as well as the plaintiffs submission to the trial court’s ruling, we conclude that the plaintiff did not waive the provisions of § 49-15.

II

The defendant next claims that the trial court improperly denied his motion to dismiss the plaintiffs motion for a deficiency judgment as untimely. The defendant argues that the operative law day was reset to December 9,1992, and therefore, pursuant to § 49-14, the plaintiff had thirty days, commencing on December 10, 1992, and expiring on January 8, 1993, to file a motion for deficiency judgment. Since the defendant did not file his second motion for deficiency judgment until January 14, 1993, the defendant maintains that the plaintiff did not file a motion for a deficiency judgment within the period specified by § 49-14, and, hence, the trial court should have granted his motion to dismiss the plaintiffs motion for deficiency judgment.

As we have fully discussed in part I of this opinion, the trial court rendered a judgment of strict foreclosure on October 5, 1992, and set a law date of October 28, 1992. On October 29,1992, due to the defendant’s failure to redeem his interest in the subject property, coupled with his inability to stay the running of the law day, the plaintiff became the unconditional owner of the equity in the subject property. We conclude that the plaintiffs October 30, 1992 motion for deficiency judgment, dated November 2, 1992, was proper and timely filed pursuant to § 49-14 (a).

III

Finally, the defendant claims that the trial court improperly admitted the testimony of the plaintiffs appraiser. Resolution of this issue requires recitation of the following additional facts.

At the May 10,1994 hearing on the plaintiffs October 30, 1992 motion for deficiency judgment, the plaintiff offered the testimony of Charles Burr, a licensed, certified real estate appraiser, to establish the value of the subject property. Burr testified that he had been requested by the plaintiff to appraise the value of the subject property as of October 10,1991, and, in conjunction with said appraisal, Burr prepared a full written report as of that date. Burr further testified that he had updated the October 10, 1991 report on or about September 26, 1992 in accordance with the plaintiffs request. Burr valued the property on October 29, 1992, at $160,000.

The defendant objected to the admission of Burr’s testimony on the bases of alleged noncompliance with Connecticut regulations with respect to real estate appraisals and certain alleged inconsistencies in Burr’s appraisal report. The trial court overruled the defendant’s objection.

To refute Burr’s testimony and to establish a higher value, the defendant offered the testimony of three witnesses. William Pinto, coordinator with the state department of children and families, testified as to a proposal pending in December, 1992, between the department and the defendant to show the property’s then market rental value.

The defendant’s second witness was Richard H. Barry, a general appraiser of residential commercial property, licensed and certified by the state. Barry testified that he had been hired by the defendant to appraise the property as of December 10, 1992. Barry stated that as on December 10, 1992, he valued the property at $230,000.

The defendant himself took the stand as the third witness and testified concerning his efforts to rent the property during the period of July through December, 1992. The defendant further testified as to the actual rent derived from the property based upon his ownership of the property and his experience in managing the property.

The defendant alleges that the testimony of Burr was improper for the following reasons: (1) Burr did not make a separate and distinct certification on his September 26, 1992 addendum report as required by § 20-328-29 (a) (11) of the Regulations of Connecticut State Agencies; (2) Burr applied the use of a gross rent multiplier in his September, 1992 report, but did not use a gross rent multiplier in his October, 1991 report; (3) Burr was unable to recall and articulate various stages and processes undertaken in the appraisal in contravention of § 20-328-30 of the Regulations of Connecticut State Agencies; (4) Burr violated § 20-328-31 of the Regulations of Connecticut State Agencies in that he calculated the value of the property using the income approach but was not able to explain the adjustments made to the square footage of the comparables used in his September, 1992 report; and (5) Burr could not testify as to the value of the property on the date of the vesting of title, October 29, 1992, and was qualified to testify only as to the value of the property on September 26, 1992, the date of his most recent report. For all of these reasons, the defendant maintains that the trial court should have excluded Burr’s testimony.

In Eichman v. J & J Building Co., 216 Conn. 443, 451-52, 582 A.2d 182 (1990), our Supreme Court held that in a deficiency judgment proceeding, “[t]he determination of [a property’s] value by a couit is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it. Appeal of Cohen, 117 Conn. 75, 85, 166 Atl. 747 [1933]. Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 233, 188 A. 433 (1936). Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 183, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). [T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible. ... Id. When confronted with conflicting evidence as to valuation the trier may properly conclude that under all the circumstances a compromise figure most accurately reflects fair market value. New Haven Savings Bank v. West Haven Sound Development, [190 Conn. 60, 70, 459 A.2d 999 (1983)]; Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 515-16, 172 A.2d 612 (1961); see also Whitney Center, Inc. v. Hamden, [4 Conn. App. 426, 429, 494 A.2d 624 (1985)].” (Emphasis in original; internal quotation marks omitted.)

In this case, the plaintiffs appraiser testified to a value of $160,000 while the defendant’s appraiser, Barry, testified that the subject property had a value of $230,000. The trial court determined the value of the subject property to be $180,000, a figure not asserted by either of the parties. Thus, the valuation of the property by the trial court appears to be an independent determination.

“In determining valuation pursuant to § 49-14, the trier, as in other areas of the law, is ‘not bound by the opinion of the expert witnesses . . . .’ Birgel v. Heintz, 163 Conn. 23, 30, 301 A.2d 249 (1972). . . . ‘The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. The conclusion of the trial court must stand unless there was an error of law or a legal or logical inconsistency with the facts found.’ . . . Maresca v. Allen, 181 Conn. 521, 523, 436 A.2d 14 (1980). We will disturb the trial court’s determination of valuation, therefore, only when it appears on the record before us that the court ‘misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was [its] duty to regard.’ ” New Haven Savings Bank v. West Haven Sound Development, supra, 190 Conn. 69-70.

After a thorough review of the trial court’s memorandum of decision, as well as the evidence presented at trial, we conclude that the trial court did not improperly admit the testimony of Burr. The trial court was entitled to admit the evidence of Burr and to weigh that evidence along with all of the other evidence presented. Given that the trial court did not select the property valuation submitted by either party, it appears that the trial court accepted and rejected portions of each appraiser’s testimony in an effort to reach a compromise between the conflicting evidence presented. The defendant did not present any evidence to indicate that the trial court relied solely on the testimony of Burr in calculating the value of the property. Under the circumstances of this case, the trial court’s determination clearly appears to have been an effort to give due regard and appropriate weight to all of the evidence presented and, therefore, was reasonable.

In addition to the testimony of the appraisers, the trial court also had before it photographs of the property, photographs of the comparable properties and the testimony of the defendant stating that he had been able to rent only one out of four units in a four month period. The trial court could have considered all of this evidence in reaching its decision. Although it is true, as the defendant emphasizes, that a litigant “is presently entitled to raise on appeal the issue of whether the valuation was properly supported by sufficient evidence.” Eichman v. J & J Building Co., supra, 216 Conn. 454, we conclude that the plaintiff met its burden of presenting sufficient evidence for the trial court to determine the value of the property on the date that title vested in the plaintiff. The trial court’s admission of the testimony of Burr was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff named as defendants Phillip B. Kneller, Edward J. Przybysz, •John and Jane Doe of the first floor front of 222-224 Pearl Street, John and Jane Doe of the first floor rear of 222-224 Pearl Street, John and Jane Doe of the second floor front of 222-224 Pearl Street and John and Jane Doe of the second floor rear of 222-224 Pearl Street. Prior to the institution of this foreclosure, the defendant Kneller filed for protection under Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court District of Connecticut at Hartford and, pursuant to such filing, received a discharge in bankruptcy. On September 16, 1992, prior to the date of judgment in this suit, the action was withdrawn as to the John and Jane Does. In this appeal, the sole remaining defendant is Przybysz. We refer to him in this opinion as the defendant..

       The defendant's motion is mist it led as amotion to reopen. The judgment, not having been previously opened, could not be reopened. The motion was one to open the judgment. See General Statutes § 49-15.

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       At the hearing, the defendant’s motion to present evidence was marked “off’ and never rescheduled for argument.

       The defendant’s motion to dismiss was accompanied by a memorandum of law.

       The defendant appealed the trial court’s denial of his objection to the plaintiff s motion for deficiency judgment. Farmers & Mechanics Bank v. Kneller, Appellate Court Docket No. 12704. The plaintiff moved to dismiss this appeal as improper because it was not taken from a final judgment. The plaintiffs motion was granted and the appeal was dismissed by this court on October 20, 1993.

       The defendant supports this argument by pointing to the following portion of the dialogue which occurred at the November 9,1992 hearing between the court and counsel:
      “The Court: The motion to reopen is denied. The motion to ery oin is denied.
      “[Defense Counsel]: The other motion can be marked off, Your Honor. That would be towards the hearing in damages for a deficiency.
      “The Court: Motion to present evidence?
      “[Defense Counsel]: Yes, Your Honor, that can be marked off.
      “The Court: You’ve got to reset all the law days?
      “[Plaintiffs Counsel]: No, Your Honor, the law days have passed, I believe. This motion was filed in a rather untimely manner.
      “The Court: The problem here is in the filing of the motions. They automatically delay the law days, doesn’t it?
      “[Plaintiff’s Counsel]: You’re right, Your Honor.
      “The Court: Is that correct?
      “[Plaintiffs Counsel]: I believe you’re right, Your Honor.
      “The Court: We have to reset the law days now.
      “[Plaintiffs Counsel]: Please, Your Honor.
      “The Court: You’ll have me back and forth with the Supreme Court on that a couple of times.
      “[Plaintiffs Counsel]: You would be the last judge of the Superior Court I would want that to happen to, Your Honor.

        “The Court: It already happened once so I’m used to it. We’ll reset the law days for December 9th, owners of the equity, subsequent days, junior encumbrancers, inverse order of priority.
      “[Defense Counsel]: Thank you, Your Honor.
      “[Plaintiffs Counsel]: And reaffirm all the other orders?
      “The Court: The motion—The only portion of the judgment the court, has modified is the reset of the law days made necessary by the defendant’s motion and the ruling on the defendant’s motion.”

       General Statutes § 49-15 provides: “Opening of judgments of foreclosure. Any judgment foreclosing the title to real estate by strict foreclosure may, at, the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.” (Emphasis added.)

       Practice Book § 4009 provides in pertinent part: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012; but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment notwithstanding the verdict, the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion or the expiration of the time within which a remittitur is ordered filed. . . .
      “The time for filing the appeal or for taking any of the steps necessary to prosecute or defend the appeal, as hereinafter provided, may be extended in accordance with the provisions of Sec. 4040.” (Emphasis added.)

       Practice Book § 4046 provides in pertinent part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shah be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shah be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced; but if the judge who tried the case is of the opinion that an extension to appeal is sought or the appeal is taken only for delay or that the due administration of justice so requires that a judge may at any time, upon motion and hearing, order that the stay be terminated. . .

       General Statutes § 49-14 (a) provides in pertinent part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. ...”

       Sections 20-328-27 through 20-328-33 of the Regulations of Connecticut State Agencies were repealed, May 18, 1994.