Bank of New York v. Bell

• Decision Date: 11 May 2010
• Citation: 993 A.2d 1022,120 Conn.App. 837
• Court: Connecticut Court of Appeals
• Parties: The BANK OF NEW YORK, as Trustee (BS Alt A 2005-9) v. Sonja V. BELL, et al.

993 A.2d 1022

120 Conn.App. 837

The BANK OF NEW YORK, as Trustee (BS Alt A 2005-9) v. Sonja V. BELL, et al.

Appellate Court of Connecticut.

Argued July 8, 2009.

Decided May 11, 2010.

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Johnathan Bell, pro se, the petitioner (intervenor).

Geoffrey K. Milne, Hartford, for the respondent (plaintiff).

J. Hanson Guest, for the named defendant.

FLYNN, C.J., and LAVINE and ALVORD, Js.^*

LAVINE, J.

This petition for review, brought pursuant to General Statutes § 51-164x (c)¹ and Practice Book § 77-1,² requires us to determine whether the trial court abused its discretion by sealing certain documents in the underlying foreclosure action.³ The pro se petitioner, Johnathan Bell, alleges in his brief that, by sealing the documents at issue, the court (1) denied him due process by failing to follow the relevant rules of practice,⁴ and (2) abused its discretion because (a) the respondent, The Bank of New York, as trustee of BS ALT A 2005-9, waived its right to have the documents sealed and (b) the court's factual findings do not support its legal conclusions. We agree that the court abused its discretion when it sealed the documents and therefore vacate the court's order sealing exhibits 4, 4A and 5.

The following procedural history is relevant to our review. On September 6, 2007, the respondent commenced the underlying foreclosure action against the petitioner's wife, Sonja V. Bell (defendant Bell), and Mortgage Electronic Registration Systems, Inc.,⁵ with respect to residential property at 54 Main Street, South Glastonbury (Bell residence).⁶ On April 18, 2008, the respondent filed a motion for summary judgment⁷ as to the defendant Bell, which was granted by the court, Hon. Samuel Freed, judge trial referee, on May 5, 2008. Judge Freed also granted the respondent's motion for a judgment of strict foreclosure on July 28, 2008. On November 10, 2008, the court, Hon. Robert Satter, judge trial referee, reset the law days after the defendant Bell filed a petition in bankruptcy.

On February 13, 2009, the defendant Bell filed a motion to dismiss the foreclosure action, claiming that the respondent had failed to demonstrate authority to pursue the action, as it was not a holder or owner of the subject note at the time the foreclosure action was commenced. The defendant Bell contended that the court lacked subject matter jurisdiction and that the respondent lacked standing. On February 24, 2009, the respondent filed an objection to the motion to dismiss to which it attached documents to demonstrate that it owned the note, including documents that are the subject of the court's sealing order. On April 23, 2009, in a memorandum of decision, Judge Satter determined that it was necessary to hold a hearing to resolve the standing issue. The court vacated the judgment of strict foreclosure, pending the outcome of its hearing on the motion to dismiss.

In the courtroom on the first day of the hearing on the motion to dismiss, May 27, 2009, the respondent filed a motion to seal. The respondent represented that the motion to seal was being filed pursuant to Practice Book § 7-4B⁸ to protect the confidentiality of certain documents that it had obtained to demonstrate that it owned the note. The respondent claimed that some of the documents were confidential in that they (1) include the names and addresses of other borrowers who are indebted to it and (2) contain proprietary business information and "`bank records'" that are protected by General Statutes § 36a-42 et seq. and 15 U.S.C. § 6801 et seq., the Gramm-Leach-Bliley Financial Modernization Act of 1999(act). Specifically, the respondent asked the court to seal schedules of loans to the purchase and assumption agreement dated April 7, 2006, amended and restated as of October 1, 2006, schedules of loans owned by the respondent and any schedule of loans that is otherwise part of the documentation offered at the hearing on the defendant Bell's motion to dismiss. The court stated that it would consider the motion to seal after the evidence was admitted.

The hearing was continued over three days, during which the court issued and vacated several orders related to the sealing of the documents. At 12:05 p.m. on June 16, 2009, the court ordered the documents identified as exhibits 4, 4A and 5 sealed, but at approximately 3:20 p.m. it made its order more specific and permitted the defendant Bell, her attorney and the petitioner to have copies of the exhibits, provided that they did not disclose the documents or their contents to others.

The petitioner timely filed an amended petition for review of the court's June 16, 2009 sealing order. This court sua sponte ordered the trial court to articulate the substance of its sealing order. The trial court filed its articulation on June 25, 2009, in which it stated its reasons for sealing exhibits 4, 4A and 5.⁹ This court ordered the petitioner and the respondent to appear for argument on the petition for review on July 8, 2009.¹⁰ Following the hearing on the petition for review, this court issued detailed orders regarding briefs to be filed by the petitioner and the respondent.

I

Before we may consider the petitioner's claims, we must address the respondent's claim that this court lacks subject matter jurisdiction over the petition for review. "Whenever a claim of lack of jurisdiction is brought to the court's attention, it must be resolved before the court can proceed." Gallant v. Cavallaro, 50 Conn.App. 132, 134, 717 A.2d 283, cert. denied, 247 Conn. 936, 722 A.2d 1216 (1998), cert. denied, 528 U.S. 1005, 120 S.Ct. 500, 145 L.Ed.2d 386 (1999). The respondent contends that the petitioner is not a person affected by the court's sealing order; see General Statutes § 51-164x (c); and, therefore, he lacks standing to file a petition for review. Not only is the petitioner a member of the public, which is affected by the court's sealing order, but also he is forbidden to disclose the contents of the documents that the court permitted him to see. We conclude, therefore, that the petitioner is a person affected by the sealing order and that we have jurisdiction to review the petition.¹¹

Section 51-164x (c) provides in relevant part: "Any person affected by a court order that seals or limits the disclosure of any files, affidavits, documents or other material on file with the court or filed in connection with a court proceeding . . . shall have the right to the review of such order by the filing of a petition for review with the Appellate Court. . . ."¹² (Emphasis added.) See also Practice Book § 77-1(a). The purpose of § 51-164x (c) is to afford expedited review of a court order that limits disclosure of records to the public. See Vargas v. Doe, 96 Conn.App. 399, 407, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006).

The respondent contends that the petitioner is not a person affected by the court's sealing order because he was not denied access to the documents at issue, and, therefore, he is not aggrieved. In support of its contention, the respondent relies on law concerning administrative appeals, where classical or statutory aggrievement is a prerequisite to the court's jurisdiction over the subject matter of the appeal. The respondent's construction of § 51-164x (c) is too narrow, and its reliance on administrative law is misplaced, as the principle at issue is not aggrievement but the openness of our courts and the public's access to documents submitted during court proceedings.

"In construing a statute, we are mindful of General Statutes § 1-2z, which instructs us that our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to determine that intent and the meaning of a statute . . . § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance 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. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) State v. Rupar, 293 Conn. 489, 505-506, 978 A.2d 502 (2009). In this instance, the meaning of the words "person affected" in § 51-164x (c) is not clear and unambiguous.

"Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public." Practice Book § 11-20A (a). "The presumption of openness of court proceedings . . . is a fundamental principle of our judicial system. . . . This policy of openness is not to be abridged lightly. In fact, the legislature has provided for very few instances in which it has determined that, as a matter of course, certain privacy concerns outweigh the public's interest in open judicial proceedings." (Citation omitted; internal quotation marks omitted.) Vargas v. Doe, supra, 96 Conn.App. at 406, 900 A.2d 525. The right to have documents sealed "is not a right the parties have as against each other; the court must determine the question as against the demands of the public interest." (Internal quotation marks omitted.) Id., at 410, 900 A.2d 525.

As a rule, documents filed in court are open for public inspection, unless an exception applies. See General Statutes § 51-164x (a) (enumerating as exceptions court sessions conducted pursuant to General Statutes §§...