Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC ( 2014 )

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GINSBERG AND GINSBERG, LLC, TRUSTEE OF
THE WIYOT TRUST v. ALEXANDRIA
ESTATES, LLC, ET AL.
(AC 35759)
Lavine, Beach and Alvord, Js.
Argued January 22—officially released April 1, 2014
(Appeal from Superior Court, judicial district of New
Haven, Abrams, J.)
Frank J. Kolb, Jr., with whom, on the brief, was
Joseph A. DiSilvestro, for the appellant (defendant
John Neubig).
Frank B. Velardi, Jr., for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant John Neubig1 appeals
from the judgment of strict foreclosure rendered by the
trial court in favor of the plaintiff, Ginsberg & Ginsberg,
LLC, trustee of the Wiyot Trust, after remand by this
court for a determination of priorities. See Ginsberg &
Ginsberg, LLC v. Alexandria Estates, LLC, 136 Conn.
App. 511, 48 A.3d 101 (2012). On appeal, the defendant
claims that the trial court improperly (1) relied solely
on two warranty deeds to support its determination
that the plaintiff’s mortgage had priority over the defen-
dant’s claimed interest in the subject property, (2)
‘‘failed to allow’’ the plaintiff’s counsel to testify with
respect to the title search he had prepared in connection
with the foreclosure action, and (3) ‘‘followed an inap-
propriate directive from the Appellate Court’’ in the
remand order. We affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. The plaintiff commenced this action to fore-
close an $800,000 mortgage against the mortgagor, Alex-
andria Estates, LLC (Alexandria Estates), and
subsequent encumbrancers. An issue arose between the
plaintiff and the defendant over the defendant’s claimed
entitlement to the payment of $35,000 for each lot that
might be developed on the subject property. According
to the defendant, his interest was secured by an
agreement between him and Dale Construction 01, LLC
(Dale Construction), that had been recorded in the land
records prior to the recording of the plaintiff’s mort-
gage.2 The defendant filed a motion to determine priori-
ties, and the trial court concluded that his interest was
prior in right to the plaintiff’s mortgage. After a judg-
ment of strict foreclosure was rendered, the plaintiff
appealed to this court. This court reversed the judgment
and remanded the case to the trial court for the purpose
of determining lien priorities in accordance with this
court’s opinion.3 Ginsberg & Ginsberg, LLC v. Alexan-
dria Estates, LLC, supra, 136 Conn. App. 517.
At the remand hearing held on August 29, 2012,4 the
trial court first asked counsel to address this court’s
remand order and their understanding of the scope of
the remand hearing. The plaintiff’s counsel stated that
the trial court had been directed to examine the deed
from the defendant to Alexandria Estates, to determine
whether the conveyance had been made subject to the
agreement between the defendant and Dale Construc-
tion. If the conveyance had not been made subject to
the agreement, it was the plaintiff’s position that its
mortgage was prior in right to the defendant’s interest,
if any, in the subject property. The defendant’s counsel
responded: ‘‘I do not 100 percent agree with the Appel-
late Court that a review of the deed is going to resolve
this whole matter.’’ He urged the trial court to consider
prior deeds in the chain of title. The only exhibits sub-
mitted as evidence at the remand hearing were the two
deeds to the subject property from the defendant to
Alexandria Estates.5 Neither deed referenced the
agreement between the defendant and Dale Con-
struction.
During the remand hearing, the defendant’s counsel
indicated that he had subpoenaed one of the plaintiff’s
attorneys, David Babbitz, to appear at the hearing ‘‘to
testify regarding the title search and steps taken to
cure any defects that may have been discovered.’’ In
response to the subpoena, the plaintiff filed a motion
to quash claiming, inter alia, that the evidence sought
was irrelevant and inadmissible with respect to the
limited issue to be addressed on remand, and that the
defendant’s attempts to secure such testimony ‘‘jeopar-
dizes the attorney-client privilege Attorney Babbitz
holds with the plaintiff and puts Attorney Babbitz in a
position where he could violate the Rules of Profes-
sional Conduct.’’ The court stated that it would address
the motion to quash at a subsequent proceeding if it
determined that additional information relative to the
title search was appropriate under the remand order.
On September 4, 2012, the court issued the following
order: ‘‘On August 29, 2012, the court held a hearing
on the [motion for determination of priorities] at which
evidence was taken. Upon review of the evidence,
including the deed between [the defendant] and . . .
Alexandria Estates, the court finds no reference to the
Neubig-Dale Construction construction agreement. As a
result, in accordance with the decision of the Appellate
Court, the court finds that plaintiff’s mortgage is prior
in right to [the defendant’s] interest.’’ The defendant
filed an appeal from that ruling to this court, which
this court dismissed on May 14, 2013. In the notice of
dismissal, this court remanded the matter to the trial
court ‘‘to enter judgment of strict foreclosure in accor-
dance with the determination of priorities.’’ On May
17, 2013, the trial court rendered a judgment of strict
foreclosure pursuant to this court’s order, and this
appeal followed.
I
The defendant’s first claim is that the court improp-
erly relied solely on the two deeds submitted as evi-
dence at the remand hearing and disregarded
agreements, including the agreement between him and
Dale Construction that had been recorded in the land
records.6 The defendant argues that ‘‘a title search
undertaken by Attorney Babbitz . . . or his designee,
clearly showed that the agreements were part of the
chain of title and therefore put the plaintiff on notice
of the defendant’s interest in the property.’’ He claims
that the court’s determination of priorities could not
be undertaken without giving ‘‘proper weight’’ to those
agreements. We conclude that the defendant’s argu-
ment fails because the trial court followed the explicit
remand order of this court.
‘‘Well established principles govern further proceed-
ings after a remand by this court. In carrying out a
mandate of this court, the trial court is limited to the
specific direction of the mandate as interpreted in light
of the opinion. . . . This is the guiding principle that
the trial court must observe. . . . Compliance means
that the direction is not deviated from. . . . It is the
duty of the trial court on remand to comply strictly
with the mandate of [this] court according to its true
intent and meaning. No judgment other than that
directed or permitted by the reviewing court may be
rendered, even though it may be one that [this] court
might have directed. The trial court should examine
the mandate and the opinion of the reviewing court
and proceed in conformity with the views expressed
therein.’’ (Internal quotation marks omitted.) State v.
Flanagan, 147 Conn. App. 262, 282–83, 82 A.3d 1191(2013), quoting Lighthouse Landings, Inc. v. Connecti-
cut Light & Power Co., 300 Conn. 325, 341, 15 A.3d
601 (2011).
This court reversed the previous judgment of the trial
court, which held that the defendant’s interest in the
subject property was prior in right to the plaintiff’s
mortgage and ordered strict foreclosure in accordance
with that determination. This court remanded the case
to the trial court ‘‘for further proceedings to determine
the order of priorities in accordance with this opinion.’’
Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC,
supra, 136 Conn. App. 517. That opinion clearly focused
on the deed from the defendant to Alexandria Estates
and, specifically, whether that deed made the convey-
ance subject to the defendant’s claimed interest in the
agreement between him and Dale Construction. As this
court stated: ‘‘Key to making any decision in this case
is a review of the deed of conveyance from [the defen-
dant] to Alexandria Estates. If this deed made the con-
veyance subject to the Neubig-Dale Construction
agreement, it bears on the issue as to whether the Neu-
big agreement is prior to the plaintiff’s mortgage. This
deed is not in the record before us. We are unable to
review this matter without it, and the court could not
properly determine priorities without this document.’’
Id., 516–17.
The trial court in this case properly ‘‘examine[d] the
mandate and the opinion’’ of this court; (internal quota-
tion marks omitted) State v. Flanagan, supra, 147 Conn.
App. 283; and concluded that it was restricted to
reviewing the deed of conveyance from the defendant
to Alexandria Estates in determining the priorities of the
claimed interests in the subject property. We therefore
reject the defendant’s claim because he essentially
requests that we find the trial court committed revers-
ible error by following the plain language of this court’s
remand order.
II
The defendant’s next claim is that the court ‘‘failed
to allow’’ the plaintiff’s counsel to testify with respect
to the title search he had prepared in connection with
the foreclosure action. Discussion of this claim is ren-
dered unnecessary by our resolution of the defendant’s
first claim, and thus, we do not address it.7
III
The defendant’s final claim is that the trial court
‘‘followed an inappropriate directive from the Appellate
Court in solely taking into account the [w]arranty [d]eed
and ignoring the [a]greements, regardless of their inclu-
sion in the deed.’’ The defendant argues that the trial
court should not have followed the ‘‘incorrect directive’’
from this court and, instead, should have considered
the additional evidence that he wanted to present to
show that the plaintiff had knowledge of the defendant’s
interest in the subject property.
In the present case, our review is governed by this
court’s previous ruling in Ginsberg & Ginsberg, LLC
v. Alexandria Estates, LLC, supra, 136 Conn. App. 511.
‘‘[T]his court follows the well-recognized principle of
law that the opinion of an appellate court, so far as it
is applicable, establishes the law of the case upon a
retrial, and is equally obligatory [on] the parties to the
action and [on] the trial court. . . . The rule is that a
determination once made will be treated as correct
throughout all subsequent stages of the proceeding
. . . .’’ (Internal quotation marks omitted.) Mariculture
Products Ltd. v. Certain Underwriters at Lloyd’s of
London, 142 Conn. App. 484, 493, 70 A.3d 92, cert.
denied, 309 Conn. 911, 69 A.3d 307 (2013). We are bound
by this court’s precedent8 and conclude that the trial
court properly followed the remand directive in Ginsb-
erg & Ginsberg, LLC v. Alexandria Estates, LLC,
supra, 511.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff filed its foreclosure complaint against several defendants.
Subsequently, the plaintiff filed a motion to join John Neubig as a party
defendant, which was granted by the court. Because Neubig is the only
defendant involved in this appeal, we refer to him as the defendant in
this opinion.
2
The plaintiff claimed that the agreement was outside the chain of title
because Dale Construction never owned the subject property. Additionally,
the plaintiff claimed that the agreement was personal and did not run with
the land. Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, supra, 136
Conn. App. 515.
3
This court’s remand order was preceded by the following statement:
‘‘Key to making any decision in this case is a review of the deed of conveyance
from [the defendant] to Alexandria Estates. If this deed made the conveyance
subject to the Neubig-Dale Construction agreement, it bears on the issue
as to whether the Neubig agreement is prior to the plaintiff’s mortgage. This
deed is not in the record before us. We are unable to review this matter
without it, and the court could not properly determine priorities without this
document.’’ (Footnote omitted.) Ginsberg & Ginsberg, LLC v. Alexandria
Estates, LLC, supra, 136 Conn. App. 516–17.
4
The transcript of the remand hearing consists of seven pages.
5
The original deed had been recorded without an attached legal descrip-
tion of the subject property. A correcting deed subsequently was recorded
with the attached legal description of the subject property.
6
We note that the defendant did not request that copies of any agreements
or other deeds in the chain of title be marked as exhibits for identification
during the remand hearing.
7
We also note that the record is inadequate to review the defendant’s
second claim. The record is silent as to what Babbitz would have testified
to, if permitted, regarding the alleged ‘‘defects [that] were found’’ in the title
search. The defendant made no offer of proof regarding Babbitz’ testimony.
‘‘The absence of an offer of proof may create a gap in the record that would
invite inappropriate speculation on appeal about the possible substance
of the excluded testimony.’’ (Internal quotation marks omitted.) Dinan v.
Marchand, 279 Conn. 558, 583, 903 A.2d 201 (2006).
8
The defendant did not file a motion for reconsideration en banc with
this court, nor did he file a petition for certification to appeal with our
Supreme Court.