BNY Western Trust v. Roman

• Citation: 990 A.2d 853,295 Conn. 194
• Decision Date: 23 March 2010
• Docket Number: No. 18386.,18386.
• Court: Supreme Court of Connecticut
• Parties: BNY WESTERN TRUST v. Diane L. ROMAN et al.

990 A.2d 853

295 Conn. 194

BNY WESTERN TRUST v. Diane L. ROMAN et al.

No. 18386.

Supreme Court of Connecticut.

Argued January 11, 2010.

Decided March 23, 2010.

Anthony J. Musto, for the appellant (proposed intervenor Glacier International Depository Bank).

Andrew P. Barsom, for the appellee (substitute plaintiff).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

KATZ, J.

In the underlying foreclosure action, the plaintiff, Bank of New York, trustee,¹ filed a motion seeking permission of the trial court to accept an assignment of the 2005 successful bid for the sale of the foreclosed real property. The dispositive issue in this appeal is whether the trial court's decision denying a motion to intervene in the action filed by a third party claiming previously to have purchased an assignment of that bid, Glacier International Depository Bank (Glacier), was a final judgment from which an appeal lies. We conclude that, because Glacier has failed to make a colorable claim of intervention as of right, the trial court's decision denying its motion is not a final judgment. Accordingly, this jurisdictional defect necessitates dismissal of the appeal.

Our review of the numerous files in this case reveals the following undisputed facts and procedural history, which, despite being lengthy and protracted, will be condensed to their most salient details. In October, 2000, the plaintiff commenced the present action seeking to foreclose a mortgage it held on certain real property owned by the named defendant, Diane L. Roman.² In August, 2002, the trial court, Stevens, J., rendered a judgment of foreclosure by sale. In August, 2003, Diane Roman transferred 50 percent of her interest in the subject property to her husband, Louis Roman, who thereafter was granted permission to intervene in the foreclosure action as a defendant on a "going forward" basis but not to challenge the judgment of foreclosure by sale. Following a "tortuous history of delays"; BNY Western Trust v. Roman, 102 Conn.App. 265, 266, 926 A.2d 36, cert. denied, 284 Conn. 935, 937 A.2d 693 (2007); the foreclosure sale took place on December 10, 2005. Ralph Flamini submitted the highest bid for the property, $200,000, tendering a deposit of $22,500. On December 20, 2005, the committee appointed to conduct the sale (committee) filed a motion for possession of the subject property, a motion for acceptance of the committee report, sale and deed, a motion for allowance of fees and expenses, and a motion for allowance of appraiser's fees. In January, 2006, Diane Roman filed an objection to those motions on the ground that Louis Roman and Flamini had entered into a contract under which Louis Roman agreed to pay Flamini a fee for bidding at the foreclosure sale in exchange for an assignment of the successful bid. Diane Roman asserted therein that Flamini had refused to make the assignment, despite Louis Roman's attempts to complete the transaction. On January 9, 2006, the trial court, Hon. Howard T. Owens, judge trial referee, overruled the objection, granted the committee's motions and rendered judgment approving the sale to Flamini. On January 11, 2006, Diane Roman filed a motion for approval of the assignment of the successful bid for the property from Flamini to Louis Roman, but neither the court nor the committee took any action on that motion.

Before the trial court sent notice of the judgment to the parties, on January 23 and January 24, 2006, respectively, Louis Roman and Diane Roman (Romans) each filed new bankruptcy petitions.³ As a result, the court retained the property deed, and, on January 26, 2006, Flamini filed a motion for return of his deposit. In February and March, 2006, the plaintiff filed, respectively, an objection to the return of deposit, seeking an order to compel Flamini to close or forfeit his deposit, and a motion to release the deed. The plaintiff asserted that the court's approval of the committee sale had deprived the Romans of their equity of redemption and that because their only pending bankruptcy petitions had been filed after the trial court had approved the sale, the subject property was not part of their bankruptcy estates. On April 3, 2006, the trial court, Richards, J., denied Flamini's motion for return of the deposit, granted the plaintiff's motion to release the deed and ordered Flamini to close on the property within thirty days or forfeit his deposit. In so ruling, the court determined that, because the judgment approving the foreclosure sale had been rendered before the Romans filed their only pending bankruptcy petitions, the bankruptcy stay had not affected the sale approval.

On April 3, 2006, an appearance was filed by "Glacier, Louis Roman, CEO," under the status of "successful bidder of foreclosure sale," purportedly in lieu of Flamini's appearance. On April 5, 2006, the committee filed a motion for advice, asking the trial court how to proceed in light of a facsimile it had received indicating that an assignment of the successful bid from Flamini had been tendered to Glacier upon the payment of $22,500. On April 6, 2006, Diane Roman filed a notice of assignment of the successful bid, along with a copy of an assignment agreement dated April 4, 2006, and thereafter filed an objection to the committee's motion for advice, claiming that the transaction between Glacier, which, according to the assignment, was represented by Louis Roman as its chief executive officer, and Flamini was a private matter.⁴ Although the committee appeared in court on its motion for advice, by agreement with the plaintiff, it was decided that the court would not act on the motion.

Around this same time, Louis Roman appealed from the trial court's decision granting the plaintiff's motion to release the deed and ordering Flamini to close on the property, claiming that the trial court had violated the bankruptcy stay. Louis Roman's filings from this point forward listed Glacier as one of the parties upon which service had been made. The Appellate Court dismissed the appeal as moot on the ground that the Romans' equity of redemption had been extinguished once the sale of the property had been approved and the time period to appeal from the judgment approving the sale had expired. BNY Western Trust v. Roman, supra, 102 Conn.App. at 267, 926 A.2d 36.

In November, 2007, because Flamini still had not closed on the property, the plaintiff again moved for an order to compel Flamini to do so or forfeit his deposit. Louis Roman filed an objection to that motion on the ground that Flamini had assigned the successful bid to Glacier.⁵ On April 1, 2008, the trial court again ordered Flamini to close on the property within thirty days or forfeit his deposit. On May 5, 2008, after Flamini still had failed to close on the property, the committee filed a motion for advice, pursuant to which, on June 3, 2008, the court, Blawie, J., ordered that Flamini's deposit be paid to the plaintiff as credit against the debt.

On July 8, 2008, the plaintiff moved for permission to accept an assignment of the successful bid from Flamini. The plaintiff asserted essentially that the foreclosure action had been pending for several years due to the bankruptcy filings and Flamini's failure to close on the property, and that it was seeking to obtain an assignment of the bid so that it could consummate the sale and conclude the action expeditiously. The plaintiff stated therein that it had been advised by Flamini's attorney that Flamini was willing to assign the bid to the plaintiff.

On July 21, 2008, in response to the plaintiff's motion, Glacier for the first time filed a motion to intervene in the foreclosure action, along with an objection to the plaintiff's motion for permission to accept the assignment of the successful bid. Glacier claimed that it already had purchased an assignment of Flamini's bid and that it therefore had a right to be heard regarding the disposition of the property. Diane Roman also filed an objection to the plaintiff's motion, asserting that, because Flamini had assigned his right to the successful bid to Glacier, there was nothing for him to assign to the plaintiff. The trial court, Blawie, J., granted the plaintiff's motion for permission to accept an assignment of Flamini's bid, overruled all objections thereto and summarily denied Glacier's motion for intervention. See footnote 14 of this opinion.

Glacier appealed from the trial court's order denying its motion to intervene to the Appellate Court, claiming that the trial court improperly had: (1) denied Glacier the right to intervene; and (2) permitted the assignment of the successful bid to the plaintiff. Thereafter, the plaintiff filed a motion to dismiss the appeal for lack of subject matter jurisdiction on the grounds that Glacier lacked standing and had not filed a timely appeal from a final judgment, contending that Glacier had filed the appeal solely for purposes of delay. The Appellate Court denied the plaintiff's motion to dismiss, but, sua sponte, ordered the parties to brief the issue of whether Glacier had made a colorable claim as to intervention as a matter of right. Thereafter, we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. We agree with the plaintiff that Glacier has failed to make a colorable claim to intervention as of right, and, therefore, has not appealed from a final judgment. Accordingly, we must dismiss the appeal.

We begin with our well settled jurisprudence. "The subject matter jurisdiction of our appellate courts is limited by statute to appeals from final judgments. General Statutes § 52-263; see generally W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2009 Ed.) § 61-1; C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 3.1 et seq. The legislature may, however, deem otherwise...