Ambroise v. William Raveis Real Estate, Inc., 14694

• Citation: 628 A.2d 1303,226 Conn. 757
• Decision Date: 03 August 1993
• Docket Number: No. 14694,14694
• Court: Supreme Court of Connecticut
• Parties: Joseph AMBROISE et al. v. WILLIAM RAVEIS REAL ESTATE, INC., et al.

Page 1303

628 A.2d 1303

226 Conn. 757

Joseph AMBROISE et al. v. WILLIAM RAVEIS REAL ESTATE, INC., et al.

No. 14694.

Supreme Court of Connecticut.

Argued June 8, 1993.

Decided Aug. 3, 1993.

Charles S. Harris, with whom was Arthur B. Harris, Norwalk, for appellants (plaintiffs).

Catherine P. Whelan, Greenwich, with whom was Melvin J. Silverman, Norwalk, for appellees (defendants).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

PETERS, Chief Justice.

The dispositive issue in this case is whether an appeal from the denial of a prejudgment remedy may be taken after the expiration of the seven day time period specified by General Statutes § 52-278l. The plaintiffs, Joseph Ambroise and Rosita Ambroise, made an application for a prejudgment remedy seeking an order, after a hearing, for the attachment of personal and real property owned by the defendants, William Raveis Real Estate, Inc., James Ero, Stephen Melillo and Marlene B. Melillo. The underlying cause of action claimed a right to damages arising out of the defendants' alleged misrepresentations in connection with the plaintiffs' purchase of residential real property. After hearing the arguments of counsel, but without making a finding with regard to probable cause, the trial court denied the plaintiffs' application. The trial court concluded that the prejudgment remedy statutes; General Statutes § 52-278a et seq.; facially violate the requirements of due process under the Connecticut and the United States constitutions because the statutes do not require an applicant to post a bond before obtaining a prejudgment remedy. The plaintiffs appealed to this court pursuant to General Statutes § 51-199(b)(2). We dismiss their appeal.

The procedural facts of the plaintiffs' appeal are undisputed. The parties received notice of the trial court's decision on January 26, 1993. The plaintiffs filed their appeal on February 16, 1993. The defendants Stephen Melillo and Marlene Melillo filed a timely motion to dismiss the plaintiffs' appeal, which we denied without prejudice to its reconsideration at the time of full argument. The statute governing the timeliness of the plaintiffs' appeal is § 52-278l. ¹ Subsection (a) of the statute provides that an order "denying a prejudgment remedy following a hearing under section 52-278d ... shall be deemed a final judgment for purposes of appeal." Subsection (b) provides that "[n]o such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken." Because the jurisdiction of this court is defined by statute; Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993); State v. Ayala, 222 Conn. 331, 338-41, 610 A.2d 1162 (1992); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); non-compliance with § 52-278l raises a challenge to this court's subject matter jurisdiction. See Plasil v. Tableman, 223 Conn. 68, 72-73 n. 8, 612 A.2d 763 (1992); City National Bank v. Davis, 181 Conn. 42, 45-46, 434 A.2d 310 (1980); cf. Iovieno v. Commissioner of Correction, 222 Conn. 254, 258-61, 608 A.2d 1174 (1992).

In the face of their noncompliance with the seven day time limit of § 52- 278l, ² the plaintiffs proffer two arguments that their appeal is nonetheless timely. They contend, on the one hand, that their appeal is not governed by § 52-278l, and, on the other hand, that the defendants have waived any noncompliance by not pursuing the timeliness issue further in the briefs filed subsequent to our denial, without prejudice, of their motion to dismiss. Neither contention is tenable.

I

The plaintiffs' principal contention is that their appeal is timely because it is governed by the twenty day period of Practice Book § 4009 ³ rather than by the seven day period of § 52-278l. The linchpin of this argument is the claim that the denial of their prejudgment remedy did not fall within the terms of § 52-278l (a), which speaks of a denial "following a hearing." According to the plaintiffs, the hearing contemplated by § 52- 278l (a) is an evidentiary hearing, not a hearing at which counsel merely present arguments of law.

Even assuming that the plaintiffs are correct in asserting that § 52-278l does not apply, the insurmountable difficulty with their argument is that it assumes the applicability of the twenty day period, as a default position, whenever § 52-278l is inapplicable. The Practice Book provision does not, however, confer jurisdiction upon the appellate courts of this state. See General Statutes § 51-14. ⁴ Appellate jurisdiction depends upon compliance with General Statutes § 52-263, ⁵ which requires either an antecedent final judgment or a granting of a motion to set aside a verdict. In the context of prejudgment remedies, whatever the law might have been previously; see, e.g., E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 630, 356 A.2d 893 (1975); the applicable definition of an appealable final judgment on a prejudgment remedy application at the present time is that contained in § 52- 278l.

In other words, if the plaintiffs are correct that the decision from which they seek to appeal does not fall within § 52-278l (a), that decision is an interlocutory ruling that is not separately appealable. See City National Bank v. Davis, supra, 181 Conn. at 45-46, 434 A.2d 310. On the other hand, if the plaintiffs are incorrect and the trial court did deny the plaintiffs a prejudgment remedy under § 52-278l, the seven day filing requirement applies, and their appeal is untimely.

II

The plaintiffs likewise cannot succeed on their alternate contention that the defendants have waived the untimeliness of the plaintiffs' appeal. The seven day statutory time period for taking an appeal pursuant to § 52-278l is subject matter jurisdictional, and thus was not waivable by the defendants. Plasil v. Tableman, supra, 223 Conn. at 72-73 n. 8, 612 A.2d 763.

Our cases regarding appellate time limitations have generally followed one of three lines of analysis. The first line of cases holds that, because the twenty day time limitation on appeals imposed by Practice Book § 4009 is not subject matter jurisdictional, we have discretion to hear a late appeal. See, e.g., Kelley v. Bonney, 221 Conn. 549, 558-59, 606 A.2d 693 (1992); Connelly v. Doe, 213 Conn. 66, 69-70 n. 4, 566 A.2d 426 (1989); but see DeTeves v. DeTeves, 202 Conn. 292, 520 A.2d 608 (1987) (Practice Book § 4040 limits power of trial court to one twenty day extension of time to appeal). The rationale for this rule is that the twenty day period established by § 4009 is not a "constitutionally or legislatively created condition precedent to the jurisdiction of this court. The source of the authority for the adoption of the rule lies in the inherent right of constitutional courts to make rules governing their procedure." LaReau v. Reincke, 158 Conn. 486, 492, 264 A.2d 576 (1969). Such time constraints, which are created by the courts, can be waived by the courts.

The second line of cases holds that time limitations on the right to appeal that are contained in statutes, rather than in the provisions of the Practice Book, are subject matter jurisdictional. See, e.g., Plasil v. Tableman, supra, 223 Conn. at 72-75, 612 A.2d 763 (seven day time limit on appeal from prejudgment remedy order under § 52-278l ); see also Iovieno v. Commissioner of Correction, supra (General Statutes § 52-470 limits discretion of habeas corpus court to consider petitions for certification to appeal filed within ten days of decision only). The rationale for this line of cases is that our appellate subject matter jurisdiction is created by statute, and we have no power to enlarge or circumscribe it. See, e.g., Grieco v. Zoning Commission, supra.

The third line of cases holds, contrary to cases in the second line of cases, that some statutory time limitations on the right to appeal are discretionary, rather than jurisdictional. See, e.g., Cardoza v. Zoning Commission, 211 Conn. 78, 81 n. 4, 557 A.2d 545 (1989) (seven day time limitation on appeal to Appellate Court from trial court ruling on motion to dismiss zoning appeal; time period not jurisdictional); ⁶ Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980) (seven day time limitation for appeal from prejudgment remedy action under § 52-278l ; time period not jurisdictional); ⁷ see also State v. Ayala, 222 Conn. 331, 342, 610 A.2d 1162 (1992) (Chief Justice has discretion to waive noncompliance with two week requirement for appeal under General Statutes § 52-265a; time period not jurisdictional). We have not, however, articulated what principle differentiates these cases from those in the second line of cases.

On further reflection, we now conclude that the proper analysis of a statutory time limitation on the right to appeal devolves into a question of statutory construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal? "We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature." State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987).... Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987).

"Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in...