Moran v. Morneau

• Decision Date: 07 June 2011
• Docket Number: No. 31699.,31699.
• Citation: 19 A.3d 268,129 Conn.App. 349
• Parties: Michel MORANv.Ricky A. MORNEAU et al.
• Court: Connecticut Court of Appeals

129 Conn.App. 349

19 A.3d 268

Michel MORAN

v.Ricky A. MORNEAU et al.

No. 31699.

Appellate Court of Connecticut.

Argued March 15, 2011.Decided June 7, 2011.

John–Henry M. Steele, for the appellant (plaintiff).Sean P. Clark, for the appellee (defendant Chase Home Finance, LLC).DiPENTIMA, C.J., and BISHOP and SCHALLER, Js.SCHALLER, J.

In this foreclosure action, the court rendered judgment of foreclosure by sale and, prior to either the sale or the rendering of a supplemental judgment, determined the parties' priorities with respect to the subject property. The sole issue to be decided in this appeal is whether the trial court's determination of priorities is an appealable final judgment. We conclude that it is not and, accordingly, dismiss the appeal.

The following facts and procedural history are relevant to this appeal. The defendant Ricky A. Morneau owns the subject property commonly known as 399 Main Street in Portland. The plaintiff, Michel Moran, commenced this action seeking to foreclose on a judgment lien that she holds on the property. In the operative complaint, the plaintiff alleged that on July 17, 2003, she recorded a “[n]otice [r]e: [c]onstructive [t]rust 1/2 [o]wnership” of the subject property on the Portland land records. She obtained a prejudgment attachment against the property in the amount of $54,000, which she recorded on the land records on May 28, 2004. The plaintiff prosecuted a successful breach of contract action against Morneau and was awarded a monetary judgment in the principal amount of $63,061, plus interest.¹ She recorded the judgment lien on the land records on February 15, 2006.

The defendant Chase Home Finance, LLC (Chase) is the assignee of and successor in interest to a promissory note and mortgage deed in the original principal amount of $185,000, which was recorded on the Portland land records on August 22, 2003.² The defendant JPMorgan Chase Bank, N.A. (JPMorgan) holds a note secured by a second mortgage in the original principal amount of $50,000, which was recorded on the land records on February 10, 2005. The plaintiff's position is that both the attachment and the judgment lien relate back to the July, 2003 “[n]otice [r]e: [c]onstructive [t]rust 1/2 [o]wnership,” which would give her claim priority over that of both Chase and JPMorgan.

On September 14, 2009, the court rendered a judgment of foreclosure by sale and set the sale date for November 21, 2009. Thereafter, Chase filed a motion to determine the priorities of the parties' interests in the subject property. In its motion, Chase represented that, due to the apparent lack of equity in the property to satisfy all of the interest sought to be foreclosed, adjudication of the priority issue prior to the sale was critical. The court heard oral argument on Chase's motion. At the court's request, Chase and the plaintiff each filed proposed findings of fact and proposed orders. On November 16, 2009, the court issued notice that it adopted the findings of fact and priorities based on Chase's proposed orders. In so doing, the court found that the plaintiff's claim did not relate back to the July, 2003 “[n]otice [r]e: [c]onstructive [t]rust 1/2 [o]wnership” that she filed on the land records because there was no legal or statutory basis for such filing. Accordingly, Chase's interest, recorded in August, 2003, was given first priority in right. The plaintiff's interest followed by virtue of the notice of attachment that she had recorded in May, 2004. JPMorgan's claim, recorded in February, 2005, followed.

The plaintiff filed the present appeal contesting the court's determination of the parties' priorities and, in light of the pending appeal, the court cancelled the sale. Chase moved this court to dismiss the appeal on the ground that the trial court's ordering of the parties' priorities was not an appealable final judgment. We denied the motion to dismiss without prejudice and allowed the parties to address the final judgment issue in their briefs on the merits.

The plaintiff claims that the order determining the priorities of the parties is an appealable final judgment because the order so concludes the rights of the parties that further proceedings cannot affect them.³ Specifically, she claims that she would suffer an irreparable loss of her right to first priority. She argues that, as the party with second priority, should she bid successfully for the property at the foreclosure sale, she would take title to it subject to Chase's mortgage.⁴ Should another party prevail, Chase's interest would be paid in full before she received any payment at all. She maintains that the combined value of her judgment lien and the debt owed to Chase exceeds the equity in the property. Accordingly, she argues that her challenge to the trial court's order, which subordinated her interest to that of Chase, is necessary to prevent an irreparable loss of her right to challenge the determination of priorities. She argues, therefore, that the order constitutes an appealable final judgment. We disagree.

We begin by setting forth our standard of review. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding ... subject matter jurisdiction is a question of law [over which we exercise plenary review].” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 651–52, 954 A.2d 816 (2008).

As our Supreme Court has explained: “To consider the [plaintiff's] claims, we must apply the law governing our appellate jurisdiction, which is statutory.... The legislature has enacted General Statutes § 52–263, ⁵ which limits the right of appeal to those appeals filed by aggrieved parties on issues of law from final judgments. Unless a specific right to appeal otherwise has been provided by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.... Further, we have recognized that limiting appeals to final judgments serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings.” (Citations omitted; internal quotation marks omitted.) Id., at 652–53, 954 A.2d 816.

“This court has determined [however] that certain interlocutory orders are to be treated as final judgments for purposes of appeal. To determine whether an order should be treated as such, we apply a two-pronged test: An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983) ]. Unless an order can satisfy one of these two [ Curcio ] prongs, the lack of a final judgment is a jurisdictional defect that necessitates dismissal of the appeal.” (Internal quotation marks omitted.) Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 467–68, 940 A.2d 742 (2008).

The issue in the present case is whether the order from which the plaintiff appeals satisfies the second prong of Curcio. “[F]or an interlocutory ruling in either a criminal or a civil case to be immediately appealable under the second prong of Curcio, certain conditions must be present. There must be (1) a colorable claim, that is, one that is superficially well founded but that may ultimately be deemed invalid, (2) to a right that has both legal and practical value, (3) that is presently held by virtue of a statute or the state or federal constitution, (4) that is not dependent on the exercise of judicial discretion and (5) that would be irretrievably lost, causing irreparable harm to the appellants without immediate review.” (Internal quotation marks omitted.) Wells Fargo Bank of Minnesota, N.A. v. Jones, 85 Conn.App. 120, 125, 856 A.2d 505 (2004). “[E]ven when an order impinges on an existing right, if that right is subject to vindication after trial, the order is not appealable under the second prong of Curcio .... [T]here is a small class of cases [that] meets the test of being effectively unreviewable on appeal from a final judgment and [that], therefore, is subject to interlocutory review.” (Citations omitted; internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 231–32, 901 A.2d 1164 (2006).

The plaintiff claims that her right to first priority with respect to the subject property is in jeopardy. A discussion of judgments in the foreclosure by sale process is helpful here. “The purpose of the judicial sale in a foreclosure action is to convert the property into money and, following the sale, a determination of the rights of the parties in the funds is made, and the money received from the sale takes the place of the property.” National City Mortgage Co. v. Stoecker, 92 Conn.App. 787, 794, 888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). In a foreclosure by sale, there are typically three appealable determinations: the judgment ordering a foreclosure by sale, the approval of the sale by the court and the supplemental judgment. See Glenfed Mortgage Corp. v. Crowley, 61 Conn.App. 84, 88–89, 763 A.2d 19 (2000); D. Caron & G. Milne, Connecticut Foreclosures (4th Ed.2004) § 17.04, p. 391; ⁶ see also, e.g., Antonino v. Johnson, 113 Conn.App. 72, 73, 966 A.2d 261 (2009) (appeal from judgment of foreclosure by sale); LaSalle Bank, N.A., Trustee v. Randall, 125 Conn.App. 31, 32–33, 6 A.3d 175 (2010) (appeal from judicial confirmation of sale); City National Bank v. Traffic Engineering Associates, Inc., 166 Conn. 195, 196–197, 348 A.2d 637 (1974) (appeal from supplemental judgment).

As to the first determination, “a judgment of foreclosure constitutes an appealable final judgment when the court has determined the method of...