Hartford Federal Sav. and Loan Ass'n v. Tucker

• Decision Date: 25 February 1988
• Docket Number: No. 4628,4628
• Citation: 13 Conn.App. 239,536 A.2d 962
• Court: Connecticut Court of Appeals
• Parties: HARTFORD FEDERAL SAVINGS AND LOAN ASSOCIATION v. Stanley TUCKER et al.

Page 962

536 A.2d 962

13 Conn.App. 239

HARTFORD FEDERAL SAVINGS AND LOAN ASSOCIATION v. Stanley TUCKER et al.

No. 4628.

Appellate Court of Connecticut.

Argued Oct. 14, 1987.

Decided Jan. 19, 1988.

Certification Denied Feb. 25, 1988.

Stanley V. Tucker, pro se.

F. Gina Gelb, with whom, on the brief, was Frederic D. Augenstern, Hartford, for appellee (receiver of rent).

William L. Ankerman, pro se.

Before DUPONT, C.J., and SPALLONE and STOUGHTON, JJ. DUPONT, Chief Judge.

The history of this case is long and complex. It began more than nine years ago with the initiation by the plaintiff of four separate mortgage foreclosure actions against the named defendant (hereinafter the defendant) and others. The defendant is the owner of the equity of redemption on the four properties. A rent receiver, Frances Gionfrido, doing business as Plaza Realty, was appointed for all four properties upon motion of the plaintiff. The actions were consolidated and a trial court ordered foreclosure by sale for two of the properties and strict foreclosure for the other two. Two committees of sale, William L. Ankerman and Barbara Ruhe, were appointed by the court on or about April 20, 1979, to administer the sales of two of the properties. After the sales had been made by the committees of sale but prior to the ratification of the sales by the court, the defendant filed an appeal from the judgments which had been obtained upon the default of the defendant for failure to timely plead. The appeal resulted in the setting aside of the judgments relating to all four properties, and in a remand to the trial court for consideration of the defendant's answer, special defenses, and counterclaims. Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 221 (1980).

Over a three year period (1982-1985), while the case was pending on remand, the defendant filed numerous motions attempting to have the rent receiver removed, principally claiming that the receiver had failed to obtain rents for the properties consistent with those in the Hartford rental market. All of these motions were denied. One trial court, Brennan, J., did, however, remove the rent receiver as to one property, at the receiver's request, because the property could not produce sufficient income to justify the receiver's fees. Ultimately, another trial court, Barall, J., rendered judgments of strict foreclosure for all four of the properties.

The defendant took a second appeal to the Supreme Court claiming that his motions requesting the appointment of a new receiver of rents and for his own appointment as the rent receiver, should have been granted. He also claimed that Practice Book §§ 504 through 510 were unconstitutional. The court found no error and in its opinion discussed extensively the procedures for petitioning the court for removal of a rent receiver and for requesting the court's permission to sue a rent receiver. Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985).

The present case is the aftermath of the prior two cases. In this case, the committees of sale moved for fees and costs associated with the aborted 1979 sale, and the defendant sought permission to sue the rent receiver. The defendant appeals from a judgment of the trial court, Hennessey, J., refusing him permission to sue the rent receiver and from the award by the trial court, A. Aronson, J., of fees and expenses to the committees of sale. The substance of the defendant's claims is that Judge Hennessey erred (1) in denying him due process of law, and (2) in determining that the defendant had failed to establish a prima facie case against the rent receiver, and that Judge Aronson erred in awarding fees and expenses to the committees of sale. The committee of sale, Ankerman, claims in a cross appeal that the court erred in limiting the fees awarded. ¹

Judge Hennessey heard oral argument on the defendant's motion for permission to sue the rent receiver. ² The substance of the defendant's claim was that the receiver had breached her duty by failing to collect rents consistent with the Hartford rental market from 1982 until 1985. After an exhaustive hearing which included extensive offers of proof by the defendant and a review of the transcript from earlier motions by the defendant on the same issue, the court found that the defendant had not established a prima facie case against the rent receiver.

I

We first consider the defendant's claim that he was denied due process of law.

"Due process does not mandate a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded. See Fermont Division v. Smith, 178 Conn. 383, 397, 423 A.2d 80 (1979), and cases cited therein. The fourteenth amendment prohibits the state from denying any person life, liberty or property without due process of law, but this adds nothing to the rights of one citizen as against another. United States v. Cruikshank, 92 U.S. [2 Otto] 542, 554, 23 L.Ed. 588 (1876). The amendment 'in no way undertakes to control the power of a State to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of procedure adopted for those purposes gives reasonable notice and affords fair opportunity to be heard before the issues are decided.' Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393, 16 S.Ct. 344 , 40 L.Ed. 467 (1896)." Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176, 491 A.2d 1084 (1985).

The defendant presented a full day of argument in which he was given ample opportunity to establish a prima facie case for permission to sue the rent receiver. There is no due process violation when the party in interest is given a full hearing. This safeguard is more than adequate for assuring the protection of the constitutional right to legal process. Id.

II

The substance of the defendant's other claim of error, in connection with the denial of his motion for permission to sue the rent receiver, is that the court erred in failing to find that he presented a prima facie case.

It is well established that " '[w]hen a receiver is appointed in a foreclosure action to take charge of the property, he holds it as an arm of the court.' " Tucker v. American Ins. Co., 3 Conn.App. 397, 398, 488 A.2d 1278, cert. denied, 196 Conn. 802, 492 A.2d 1239 (1985), quoting New Haven Savings Bank v. General Finance & Mortgage Co., 174 Conn. 268, 270, 386 A.2d 230 (1978); Desiderio v. Iadonisi, 115 Conn. 652, 655, 163 A. 254 (1932). The court will permit a suit against a receiver if the litigant can establish a prima facie case; New Haven Savings Bank v. Tater, 8 Conn.Sup. 42, 43 (1940); and will grant permission to sue only if the party can show that the receiver had acted beyond his authority. Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 178, 491 A.2d 1084 (1985); Walsh v. Raymond, 58 Conn. 251, 255, 20 A. 464 (1889).

"A receiver appointed by judicial authority cannot, in the absence of a statute to the contrary, be subjected to suit without the leave of the court whose officer he is, granted in the cause in which he was appointed.... He is presumed to be acting according to the will of that court; and to sue him is necessarily to bring in another court to take part in the disposition of the estate which has been put in his charge. The rule that where a court has once acquired jurisdiction over a particular subject-matter, it retains it free from interference by any other court, is that which governs...." Links v. Connecticut River Banking Co., 66 Conn. 277, 284, 33 A. 1003 (1895); see also Tucker v. American Ins. Co., supra, 3 Conn.App. 399, 488 A.2d 1278.

This court will not substitute its judgment for that of the trial court which has had the opportunity to weigh the arguments presented by the litigants. See Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); Munn v. Scalera, 181 Conn. 527, 530-31, 436 A.2d 18 (1980). The record reflects a thorough consideration of the defendant's arguments by the court. We can find no basis for rejecting its decision that the defendant failed to present a prima facie case showing that the receiver had acted beyond her authority.

III

The defendant's final claim is that the court, A. Aronson, J., erred in awarding fees and expenses to the committees of sale. "The threshold question that must be determined is whether this court has jurisdiction over [this portion of the defendant's] appeal. Although this issue was not raised by the parties, the court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear." Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985).

General Statutes § 49-25 provides, in relevant part, that "the expense of the sale and appraisal shall be paid by the plaintiff and be taxed with costs of the case." (Emphasis added.) Certainly, the plaintiff, Hartford Federal Savings and Loan Association, is a proper party to contest the award of committee fees and expenses. The question we must address, however, is whether the defendant has standing to raise this issue.

This court's subject matter jurisdiction over this issue is dependent upon the defendant's proof of aggrievement. Local 1303 & 1378 v. FOIC, 191 Conn. 173, 177, 463 A.2d 613 (1983). A two-pronged test for determining aggrievement exists. First, " ' "the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievment must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." Nader v. Altermatt, 166...