Marine Midland Bank v. Ahern

• Decision Date: 16 February 1999
• Docket Number: (AC 18041)
• Parties: MARINE MIDLAND BANK v. PATRICK AHERN ET AL.
• Court: Connecticut Court of Appeals

51 Conn. App. 790

724 A.2d 537

MARINE MIDLAND BANK v. PATRICK AHERN ET AL.

(AC 18041)

Appellate Court of Connecticut.

Argued September 22, 1998.

Officially released February 16, 1999.

O'Connell, C. J., and Hennessy and Stoughton, Js. John F. Carberry, for the appellants (defendants).

Thomas G. Wolff, for the appellee (plaintiff).

Opinion

HENNESSY, J.

This appeal arises from an action brought by the plaintiff, Marine Midland Bank (bank), to foreclose a judgment lien that it recorded on a condominium owned by the defendants, Patrick Ahern and Maureen Ahern. The defendants claim that the trial court improperly (1) entered an order on January 20, 1998, that rescheduled the law day to occur less than twenty days after the January 5, 1998 order and (2) entered an order on January 5, 1998, that, as a condition of the trial court's granting of the motion to open, improperly required that "Ahern & Partners shall not transfer any moneys to any other parties even in the course of regular business."

The following facts and procedural history are relevant to this appeal. The bank obtained a judgment against the defendants in the amount of $976,994.42. Subsequently, the bank recorded a certificate of judgment lien on a condominium in Greenwich owned by the defendants. By a complaint dated August 28, 1995, the bank commenced an action to foreclose the judgment lien on the defendants' property.

After the defendants were defaulted for failure to disclose a defense, the trial court, D'Andrea, J., granted the bank's motion for judgment of strict foreclosure on July 24, 1997. The trial court set the law day as October 7, 1997.

On October 3, 1997, the defendants filed a motion to open the judgment. In support of their motion, the defendants argued that they "expect to be in a position shortly to make a proposal to [the] plaintiff for satisfaction of the plaintiff's judgment. This process has been delayed by the fact that [the] defendants must also quantify and settle certain claims for taxes by the Internal Revenue Service .... As a sign of good faith, [the] defendants ... will tender $75,000 to [the plaintiff]." On October 6, 1997, the trial court, Hickey, J., granted the defendants' motion "provided $75,000 is paid to the plaintiff or plaintiffs attorney on October 7, 1997, by 5 p.m." The trial court set the new law day as November 7, 1997. The defendants paid the $75,000 as ordered by the trial court.

On October 30, 1997, the defendants filed a second motion to open the judgment. In support of their motion, the defendants made the same argument and again offered to tender $75,000 to the bank as a sign of good faith. On November 3, 1997, the trial court, Hickey, J., granted the defendants' second motion to open.¹ The defendants paid the bank $75,000 shortly thereafter.

On December 31, 1997, the defendants filed a third motion to open the judgment. In support of their motion, the defendants again argued that they "expect to be in a position during the first quarter of 1998 to make a proposal to [the] plaintiff for satisfaction of the plaintiffs judgment. This process has been delayed by the fact that [the] defendants must also quantify and settle certain claims for taxes by the Internal Revenue Service...." The defendants again offered to make a $75,000 payment to the bank as a sign of good faith. The trial court, Hickey, J., heard the defendants' motion to open on January 5, 1998. After hearing arguments from both parties, the trial court ordered, as a condition to its granting of the defendants' motion to open, that "Ahern & Partners shall not transfer any moneys to any other parties even in the course of regular business." In addition, the trial court ordered the defendants to pay $100,000 to the bank by January 7, 1998, and to produce records. The trial court set the new law day as February 3, 1998.

The defendants failed to pay the $100,000 to the bank as ordered. Thereafter, on January 20, 1998, the bank moved to amend the law day due to the defendants' failure to make the $100,000 payment as ordered by the trial court. The trial court granted the bank's motion and set January 23, 1998, as the new law day.

On January 22, 1998, one day before the running of the law day, the defendants appealed from the trial court's January 5 and January 20, 1998 orders. Other facts will be discussed where relevant to the issues in the case.

I

The defendants first claim that the trial court improperly entered an order on January 20, 1998, that amended the law day "so that [the law day] commenced to run less than twenty days after the January 5, 1998 order." The defendants argue that, under Practice Book § 4009 (a), now § 63-1, they were entitled to twenty days to file an appeal from the commencement of the appeal period. The defendants further argue that the trial court set January 23, 1998, as the new law day, which is not twenty days from either the January 5 or January 20, 1998 order.

The bank responds that because the defendant filed this appeal one day prior to the running of the law day, which stayed the running of the law day, there is no practical relief that this court can grant, and, therefore, this argument is moot. We agree with the bank.

"`Mootness implicates the subject matter jurisdiction of this court.' Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988)." Gagnon v. Planning Commission, 24 Conn. App. 413, 415, 588 A.2d 1385 (1991), affd, 222 Conn. 294, 608 A.2d 1181 (1992). "The test for determining mootness of an [issue on] appeal is whether there is any practical relief this court can grant the appellant. Citicorp Mortgage, Inc. v. Hairston, 34 Conn. App. 138, 139, 640 A.2d 146 (1994). [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... If no practical relief can be afforded to the parties, the appeal must be dismissed.... Gagnon v. Planning Commission, [supra, 415-16]." (Internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 81, 713 A.2d 886 (1998).

When the trial court set the law day to run on January 23, 1998, it did not give the defendants twenty days to appeal as required by Practice Book § 63-1.² The defendants, however, filed their appeal on January 22, 1998, one day before the running of the law day. They cannot, therefore, claim that they were aggrieved by the court's failure to allow twenty days for them to appeal. Furthermore, the timely filing of the appeal activated the automatic stay under Practice Book § 61-11.³ This had the effect of staying the running of the law day, and a new law day will have to be set after this appeal in any event.⁴ See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 346-47, 579 A.2d 1054 (1990); Zinman v. Maislen, 89 Conn. 413, 416, 94 A. 285 (1915). Therefore, there is no practical relief that this court can grant to the defendants. Accordingly, we dismiss this claim as moot.

II

The defendants next argue that the trial court improperly entered an order on January 5, 1998, that enjoined Ahern & Partners, a nonparty, from transferring "any moneys to any other parties even in the course of regular business." Specifically, the defendants argue that the "trial court's order fundamentally offends principles of due process of law" because Ahern & Partners has never been a party to the foreclosure proceedings.

The following additional facts are necessary to the resolution of this issue. Ahern & Partners is a general partnership, which is comprised of two corporate general partners. One of the corporate general partners is Harp Enterprises, Inc. Patrick Ahern and Maureen Ahern, the defendants, own all of the stock in Harp Enterprises, Inc. The other corporate general partner of Ahern & Partners is a corporation owned by Robert Wilcox and members of his family.

At the January 5, 1998 hearing on the foreclosure action, the bank argued that Ahern & Partners had assets as the result of having received a payment of $3.65 million as a fee for services rendered in a bankruptcy proceeding. The bank stated to the trial court that it was concerned about the "dissipation of this money." The bank indicated that "already 2.4 million dollars has been paid to the other general partner, although the other general partner owns 50 percent [of Ahern & Partners]."

The defendants argue that "Ahern & Partners owes no debt to the plaintiff, was not represented in court on January 5, 1998, and was given no notice that its rights might be affected by the proceedings herein." The defendants further argue that the "United States Constitution requires that any person be afforded due process of law before its interests in property may be affected." The defendants appear to be arguing on behalf of Ahern & Partners. Ahern & Partners, however, is not a party to this action.⁵ This claim raises the issue of whether the defendants are the appropriate parties to raise a due process claim on behalf of Ahern & Partners in an action against the defendants in their individual capacity.

Review by way of appeal is governed in general by General Statutes § 52-263, which provides in relevant part: "Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either pa...