First Ct. Capital v. Homes of Westport
Decision Date | 24 February 2009 |
Docket Number | No. 28991.,28991. |
Citation | 966 A.2d 239,112 Conn. App. 750 |
Court | Connecticut Court of Appeals |
Parties | FIRST CONNECTICUT CAPITAL, LLC, et al. v. HOMES OF WESTPORT, LLC, et al. |
Edward Kanowitz, New York, NY, for the appellant(named defendant).
Matthew B. Woods, Norwalk, for the appellees(named plaintiff et al.).
GRUENDEL, BEACH and HENNESSY, Js.
This is a foreclosure appeal about a committee sale conducted during the pendency of an appellate stay.The defendantHomes of Westport, LLC, challenges the propriety of the judgment of the trial court approving the committee sale of certain real property in Westport.1We conclude that the court abused its discretion in approving a committee sale conducted during the pendency of an appellate stay and, accordingly, reverse the judgment of the trial court.
The facts are not disputed.In December, 2006, the plaintiffs, First Connecticut Capital, LLC, Hedy Kanarick, First CT Capital Mortgage PoolNo. 1, Harold Silver, Pearl Silver, Ronald Simonelli, David Snow and First Connecticut Capital Mortgage Fund A, Limited Partnership, commenced a foreclosure action against the defendant with respect to real property known as 3 Grays Farm Road in Westport (property).2The defendant thereafter filed a disclosure of no defense, and the plaintiffs, in turn, moved for a judgment of strict foreclosure.On May 7, 2007, the court rendered judgment of foreclosure by sale, finding the value of the property to be $3.2 million and a debt owing of $1,847,934.The defendant did not appeal from that judgment.The court set a sale date of July 7, 2007.
On July 5, 2007, the defendant filed a motion to open the judgment of foreclosure by sale and extend the sale date.3On July 6, 2007, the court held a hearing thereon, at which the defendant alleged that it was in negotiations with Angelo Labbruzzo, a potential buyer of the property, as evidenced by a purchase agreement and a personal check signed by Labbruzzo.The defendant thus requested that the sale date be delayed more than seven months.The plaintiffs expressed skepticism at the alleged potential sale of the property, stating that they had informed the defendant that "if the alleged buyer was willing to put up a 10 percent, nonrefundable deposit, we wouldn't object to an extension of time, because we'd love to have the property sold. . . ."That offer was not accepted.The plaintiffs further stated: The plaintiffs further noted that the purchase agreement before the court provided that "[t]his sale is contingent upon the buyer's ability to obtain financing thirty days from completion of home, building inspection, radon test and well test."As a result, the plaintiffs maintained that the sole basis of the defendant's motion was to delay the foreclosure sale, stating that In response, counsel for the defendant candidly stated: "Your Honor, as you know, has to weigh the equities of the possibility of this deal being a real deal.It was just presented to me yesterday.I was just retained yesterday.I don't know who the buyer is, of course.I don't know about the bona fide [nature] of that check, but in doing real estate conveyancing, the way it starts is with a binder and with a personal check. . . .
There [are] times when you find out that the check is good, sometimes you find out the check is no good."
After hearing from all concerned parties, the court denied the motion to open the judgment of foreclosure by sale.At that time, the plaintiffs moved to terminate prospectively the stay of execution, pursuant to Practice Book§ 61-11(d).The plaintiffs stated: The court granted the motion to terminate prospectively the stay of execution.
At the conclusion of the July 6, 2007 hearing, the committee for the sale of the property inquired as to whether the sale was to proceed as scheduled.The following colloquy occurred:
Later that day, the defendant filed an appeal from the court's denial of its motion to open the judgment of foreclosure by sale.The sale proceeded as scheduled on July 7, 2007.
On July 13, 2007, the defendant filed with this court, pursuant to Practice Book§§ 66-6 and 61-14, a motion for review of the order terminating the stay of execution.This court denied that motion on September 26, 2007.The trial court subsequently granted the committee's motion for approval of the committee sale and deed on October 29, 2007.From that judgment, the defendant appeals.4
Before addressing the defendant's claim, we first consider whether the denial of a motion to open a judgment of foreclosure by sale is an appealable final judgment.5Two commentators have noted this muddled aspect of our foreclosure law.SeeD. Caron & G. Milne, Connecticut Foreclosures(4th Ed.2004) § 17.06, p. 394();but seeid., at p. 395( ).Because that question implicates this court's subject matter jurisdiction;seeMazurek v Great American Ins. Co.,284 Conn. 16, 33, 930 A.2d 682(2007);we first address this threshold issue.6
Preliminarily, we note that the denial of a motion to open generally is appealable.As this court recently observed, "It is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper."(Internal quotation marks omitted.)Misata v. Con-Way Transportation Services, Inc.,106 Conn.App. 736, 742, 943 A.2d 537(2008).Thus, "[w]hen a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment."Altberg v. Paul Kovacs Tire Shop, Inc.,31 Conn.App. 634, 640, 626 A.2d 804(1993).
There is no Connecticut precedent that holds that the denial of a motion to open a judgment of foreclosure by sale is not an appealable final judgment.To the contrary, our appellate courts routinely afford review to appeals from the denial of a motion to open a judgment of foreclosure by sale.See, e.g., Northeast Savings, F.A. v. Hintlian,241 Conn. 269, 271, 696 A.2d 315(1997)( );Connecticut Savings Bank v. Heghmann,193 Conn. 157, 160, 474 A.2d 790(, )cert. denied, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d 189(1984);McCord v. Fredette,92 Conn.App. 131, 133, 883 A.2d 1258(2005)( );Tax Collector v. Stettinger,79 Conn.App. 823, 827, 832 A.2d 75(2003)( );Union Trust Co. v. Roth,58 Conn. App. 481, 755 A.2d 239(2000)( );First Union National Bank v. Bonito,52 Conn. App. 52, 55, 725 A.2d 393(, )cert. denied, 249 Conn. 901, 732 A.2d 775(1999);Connecticut Mortgage Co. v. Knudsen,39 Conn.App. 936, 667 A.2d 1307(1995)( );Weston v. Reade,36 Conn.App. 961, 962, 653 A.2d 228(1995)(...
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