Town of Canton v. Cadle Props. of Conn., Inc.

• Decision Date: 10 September 2013
• Docket Number: No. 34439.,34439.
• Citation: 145 Conn.App. 438,77 A.3d 144
• Court: Connecticut Court of Appeals
• Parties: TOWN OF CANTON v. CADLE PROPERTIES OF CONNECTICUT, INC.

145 Conn.App. 438

77 A.3d 144

TOWN OF CANTON

v.CADLE PROPERTIES OF CONNECTICUT, INC.

No. 34439.

Appellate Court of Connecticut.

Argued March 6, 2013.

Decided Sept. 10, 2013.

Eric H. Rothauser, with whom were John L. Bonee III and, on the brief, Jay B. Weintraub and Lee B. Ross, West Hartford, for the appellant (intervening defendant M & S Associates, LLC).

Daniel J. Krisch, with whom was Kenneth R. Slater, Jr., Hartford, for the appellee (plaintiff).

LAVINE, ROBINSON and HARPER, Js.

LAVINE, J.

This appeal concerns the scope of authority of a receiver of rents appointed pursuant to General Statutes § 12–163a, entitled: “Receivership of rents for the collection of delinquent taxes.” The intervening defendant, M & S Associates, LLC (tenant),¹ appeals from the judgment of the trial court denying its motion to remove the receiver of rents, Boardwalk Realty Associates, LLC (receiver). On appeal, the tenant claims that the court (1) lacked subject matter jurisdiction to appoint the receiver and (2) improperly denied its motion to remove the receiver because the court had exceeded its authority under § 12–163a. The plaintiff, the town of Canton (town), contends that this court lacks jurisdiction to consider the tenant's appeal because the denial of a motion to remove a receiver is not an appealable final judgment. We conclude that subject matter jurisdiction lies in this court, and that although the trial court properly appointed the receiver, it improperly expanded the receiver's authority beyond the scope of § 12–163a. We reverse in part the judgment of the trial court.²

The following procedural history and facts as disclosed by the record are relevant to this appeal. The defendant, Cadle Properties of Connecticut, Inc. (Cadle), is the owner of real property known as 51 Albany Turnpike in Canton (property).³ On April 26, 2001, pursuant to § 12–163a, the town filed a petition seeking the appointment of a receiver of rents. The petition alleged that Cadle had failed to pay real property taxes due the town in the amount of $362,788.59, plus interest and lien penalties totaling $884,263.04. The town also alleged that the property is occupied by an automobile dealership owned by the tenant, doing business as Mitchell Volkswagen, which has a legal obligation to pay either rents or reasonable use and occupancy fees to Cadle. ⁴ The court issued an order to show cause directing Cadle to appear in court on May 23, 2011. The court did not order that the tenant be served with the show cause order or otherwise provided with notice of show cause hearing.

On June 23, 2011, the court found that Cadle owed the town taxes in the amount of $358,220.04. It appointed the receiver and issued orders with respect to the receivership. On September 27, 2011, the tenant filed a motion to intervene. On October 14, 2011, the receiver filed a motion to modify the receivership orders issued by the court (motion to modify). In its motion to modify, the receiver asked the court to find the amount of taxes due to be $495,800.51; to grant the receiver authority to evict the tenant in the event of a default on any written or oral lease; to find a new tenant; and to use all legal process to collect back rents due and owing. The court granted the motion to modify absent objection on October 14, 2011. On December 2, 2011, the court granted the tenant's September 27, 2011 motion to intervene.

On January 20, 2012, the tenant filed a motion for reconsideration of the petition for the appointment of a receiver of rents and the motion to modify (motion for reconsideration). In its motion for reconsideration, the tenant represented that the receiver had grossly exceeded its authority under § 12–163a by serving it with a notice to quit and by bringing an improper action to collect back taxes and prior rents. The tenant represented that it first became aware of the receivership on September 12, 2011, when counsel for the receiver imposed deadlines and demanded payment for prior rents and threatened the tenant with immediate eviction. The tenant also represented that on December 7, 2011, the receiver served notice on it of an application for a prejudgment remedy in which the receiver claimed due all past taxes and rents from February 1, 2000, through September 1, 2011. The tenant claimed that the receiver had exceeded its authority under § 12–163a by seeking past due taxes from the tenant, as it has never owned the property, and by serving it with a notice to quit on the basis of rents allegedly due prior to the receiver's appointment. The court denied the motion for reconsideration but ordered that “[i]f the [tenant] has evidence that the receiver has acted beyond the scope of the court order of appointment, then it may file a motion for removal. Any such order must be specific as to what actions it is based upon and address any portion of the order which may cover such actions.”

On February 1, 2012, the tenant filed a motion to remove the receiver (motion to remove) in which the tenant repeated many of the representations made in its motion for reconsideration. In addition, the tenant represented that on September 25, 2011, the receiver served a notice to quit instructing the tenant to quit the property on or before September 29, 2011, and again claimed that the receiver lacked authority to do so pursuant to § 12–163a. The tenant claimed that the receiver exceeded its authority under § 12–163a by serving a notice to quit on the basis of nonpayment of rent due prior to the receiver's appointment. The tenant further represented that the receiver filed an application for a prejudgment remedy in which it claimed due all taxes and rents from February 1, 2000, through September 1, 2011, in violation of § 12–163a. The court heard argument on the motion to remove on February 14, 2012.

Following the hearing and receipt of briefs from the tenant and the town, the court denied the motion to remove and issued the following order. “The court does not accept the tenant's interpretation of the phrase in ... § 12–163a ‘collect all rents ... forthcoming from the occupants ... in place of the owner’ as meaning only ‘collect all rental payments coming due in the future’. Neither the [case law] nor the cited legislative history support[s] such an interpretation. The [court-appointed] receiver acts in the stead of the owner and the owner would not be constrained from collecting owed back rent.... This receiver may seek the eviction of any [nonpaying] tenant through legal process. To hold otherwise would vitiate the purpose of the statute. [However, the] court's order, as [modified], does not authorize the receiver to collect any back taxes owed by the tenant. The court expects its appointed receiver to use all reasonable efforts to reach a fair repayment schedule with the tenant.” Thereafter, the tenant appealed to this court.

I

We first address the town's claim that this court lacks jurisdiction to hear the tenant's appeal. We disagree.

A claim regarding subject matter jurisdiction is a question of law and is given plenary review. See State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 567, 2 A.3d 843 (2010).

Pursuant to General Statutes § 52–263, this court is a court of limited jurisdiction and may hear appeals taken from final judgments. “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429–30, 829 A.2d 801 (2003). “The lack of a final judgment is a jurisdictional defect that mandates dismissal.” (Internal quotation marks omitted.) Lord v. Mansfield, 50 Conn.App. 21, 25, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998).

The town claims that this court lacks jurisdiction to hear the tenant's appeal, arguing that the appeal is interlocutory in nature and fails the test permitting interlocutory appeals pursuant to State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). “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.” Id., at 31, 463 A.2d 566. We conclude that this matter is an appealable final judgment under either prong of Curcio. The court's appointment of a receiver terminated a separate and distinct proceeding, and also concluded the rights of the town and Cadle as to a receivership and no further proceeding could affect them.

On June 23, 2011, following a show cause hearing, the court determined the amount of taxes Cadle owed the town, appointed the receiver, and issued orders pertaining to the receivership. “The sole purpose of such a hearing shall be to determine whether there is an amount due and owing between the owner, agent, lessor or manager and the municipality....” General Statutes § 12–163a (a). The nature of the town's remedy is summary. See Hartford Electric Light Co. v. Tucker, 35 Conn.Supp. 610, 614, 401 A.2d 454, cert. denied, 176 Conn. 765, 394 A.2d 202 (1978).⁵ The court thus resolved all of the issues the town alleged in the petition, which terminated a separate and distinct proceeding between the town and Cadle and concluded the rights between them as to the appointment of a receiver of rents. The court's appointment of a receiver therefore was a final judgment. See Metropolitan District v. Housing...