Town Of Trumbull v. Palmer, No. 30059.

• Decision Date: 17 August 2010
• Docket Number: No. 30059.
• Citation: 1 A.3d 1121,123 Conn.App. 244
• Court: Connecticut Court of Appeals
• Parties: TOWN OF TRUMBULL v. Linda A. PALMER, Executrix (Estate of Michael A. Knopick) et al.

123 Conn.App. 244

1 A.3d 1121

TOWN OF TRUMBULL

v.Linda A. PALMER, Executrix (Estate of Michael A. Knopick) et al.

No. 30059.

Appellate Court of Connecticut.

Argued Feb. 5, 2010.

Decided Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Helene B. Knopick, pro se, the appellant (defendant).

Linda A. Palmer, pro se, the appellant (proposed intervenor).

Robert G. Golger, Fairfield, for the appellee (plaintiff).

BEACH, ROBINSON and PETERS, Js.

ROBINSON, J.

The pro se defendant Helene B. Knopick ¹ and the would-be intervenor, Linda A. Palmer, appeal from the judgment of the trial court setting a new sale date and denying their motion to open and vacate the judgment rendered in favor of the plaintiff, the town of Trumbull, and the court's denial of Palmer's motions to intervene. The issues on appeal are whether the court abused its discretion by denying (1) Palmer's motions to intervene in her individual and fiduciary capacities, and (2) the motion to open and vacate the judgment. We dismiss Palmer's appeal and affirm the judgment of the trial court.

The underlying facts of this case were set out in detail in Trumbull v. Palmer, 104 Conn.App. 498, 934 A.2d 323 (2007), cert. denied, 286 Conn. 905, 944 A.2d 981 (2008). We will address only those facts and the procedural history necessary to address the claims in this appeal. Michael A. Knopick (decedent) executed his last will on May 27, 1989, leaving to the defendant all of his interest in their home at 29 Haverhill Road in Trumbull (property). Id., at 500, 934 A.2d 323. The decedent died on June 20, 1989, and his will, naming Palmer as executrix, was admitted to probate on January 19, 1990. Id. A certificate of devise reflecting the defendant's absolute interest in the property, however, was never filed in the land records. From October 1, 1990, and annually thereafter, through October 1, 2000, the plaintiff assessed and levied a tax on the property and billed the owners of record, the decedent and the defendant. Id. None of the taxes assessed on the property during that time were paid. The plaintiff, therefore, placed “certificates of lien in the land records for each delinquent tax.” Id. In August, 2002, the plaintiff commenced an action seeking to foreclose the eleven municipal tax liens against the property. ² Id., at 500-501, 934 A.2d 323. “Following a hearing on September 13, 2005, the court [ Richards, J.] rendered judgment of foreclosure by sale with a sale date of November 12, 2005.” Id., at 501, 934 A.2d 323. The defendant appealed. ³ This court affirmed the judgment of foreclosure by sale and remanded the case for the purpose of setting a new sale date. Id., at 515, 934 A.2d 323.

On remand, on April 9, 2008, the plaintiff filed a motion for a new sale date and asked the court, Blawie, J., to recalculate the amount of the debt and to award it attorney's fees for the defendant's appeal. On May 16, 2008, the defendant and Palmer opposed the motion for a new sale date, claiming that the court lacked subject matter jurisdiction over the action and that the plaintiff had perpetrated a fraud on the court. On May 19, 2008, the defendant and Palmer filed a motion to open and vacate the judgment, again asserting that the plaintiff and its counsel had perpetrated a fraud on the court and that the court lacked subject matter jurisdiction. ⁴ The defendant and Palmer based their claim of fraud on the fact that the action was brought against the decedent's estate, not the fiduciary of the estate, ⁵ and that the action had been withdrawn against the estate and Palmer individually prior to trial. The motion to open and vacate the judgment stated in part that “[n] o notice was ever given to [the defendant] or Palmer not even at trial that [the] [p]laintiff sought to recover against [the defendant] for the claims it plead[ed] against the [e]state.” The court overruled the objection to the motion for a new sale date and, on June 4, 2008, denied the motion to open and vacate the judgment.

On May 19, 2008, Palmer filed a motion to intervene, individually and in her fiduciary capacity as executrix. In her affidavit, Palmer represented that the defendant had quitclaimed 50 percent of her interest in the property to Palmer. The court denied the motion to intervene on June 4, 2008. The court granted the plaintiff's motion for a new sale date on June 24, 2008. On June 24, 2008, Palmer filed a second motion to intervene for the purpose of filing an appeal. The court denied the second motion to intervene on June 25, 2008. The defendant and Palmer filed numerous motions for reconsideration and reargument.

Palmer and the defendant filed an appeal and amended it twice. ⁶ They also filed postjudgment motions asking the court to issue a memorandum of decision stating the factual and legal bases for its rulings with respect to all of their motions. The court denied those motions. Thereafter, the defendant and Palmer filed a motion for review of the court's denial of their motion for articulation. This court granted the motion for review and the relief requested therein. ⁷ On March 4, 2009, the court filed an articulation of its decision.

I

Our first order of business is to determine whether Palmer is a proper party to this appeal. “A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction.... It is well established that the subject matter jurisdiction of the Appellate Court and of this court is governed by [General Statutes] § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court.” (Citation omitted; emphasis in original; internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000). “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.... [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case.... If it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Citation omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624-25, 822 A.2d 196 (2003).

Section 52-263 “explicitly sets out three criteria that must be met in order to establish subject matter jurisdiction for appellate review: (1) the appellant must be a party; (2) the appellant must be aggrieved by the trial court's decision; and (3) the appeal must be taken from a final judgment.” State v. Salmon, 250 Conn. 147, 153, 735 A.2d 333 (1999). “Ordinarily, the word party has a technical legal meaning, referring to those by or against whom a legal suit is brought ... the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons.... This definition of party, which we also have labeled party status in court ... includes only those who are parties to the underlying action.” (Citations omitted; internal quotation marks omitted.) Id., at 154, 735 A.2d 333. To resolve this question, we must address Palmer's claims that the court improperly denied her motion to intervene as executrix of the decedent's estate and individually.

“The fundamental test for establishing classical aggrievement is well settled: [F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision.... Second, the party claiming aggrievement also must demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law.” (Internal quotation marks omitted.) King v. Sultar, supra, 253 Conn. at 434-35, 754 A.2d 782. Ordinarily, “review by way of appeal pursuant to § 52-263 is available only to parties to an underlying action....” (Citation omitted; internal quotation marks omitted.) Id., at 436, 754 A.2d 782. In King, our Supreme Court considered whether a person whose motion to intervene had been denied by the trial court satisfied the party status requirement of § 52-263. “[I]f a would-be intervenor has a colorable claim to intervention as a matter of right ... both the final judgment and party status prongs of our test for appellate jurisdiction are satisfied.” (Citation omitted; internal quotation marks omitted.) Id., at 436, 754 A.2d 782. The question then is whether Palmer had a colorable claim to intervene. ⁸ We conclude that she did not.

The defendant and Palmer claim that the court improperly denied Palmer's motion to intervene as a matter of right, or in the alternative, permissively. ⁹ The scope of review over a claim of intervention as a matter of right is plenary. Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 454-55, 904 A.2d 137 (2006).

“[F]or a proposed intervenor to establish that it is entitled to intervene as a matter of right, the proposed intervenor must satisfy a well established four element conjunctive test: [T]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant's interest must be impaired by disposition of the litigation without the movant's involvement and the movant's interest must not be represented adequately by any party to the litigation.... A proposed intervenor must allege sufficient facts, through its motion to intervene and the pleadings, to make the requisite showing of its right to intervene.... No additional testimony or evidence is required.... Failure to meet any one of the four elements, however, will preclude intervention as of right.” (Citations omitted; internal quotation marks omitted.)...