Fairlake Capital, LLC v. Lathouris ( 2022 )


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    FAIRLAKE CAPITAL, LLC v. LATHOURIS—CONCURRENCE
    MOLL, J., with whom ALEXANDER, J., joins, concur-
    ring in part and dissenting in part. Although I agree
    with the majority’s conclusions in part I of its opinion
    that (1) the trial court’s denial of the motion to discharge
    the notice of lis pendens filed by the defendant Number
    Six, LLC (Number Six), is a final judgment for appeal
    purposes and (2) the trial court improperly denied the
    motion to discharge solely on the basis of the discretion-
    ary stay, I write separately because I respectfully dis-
    agree with the reasoning underpinning the majority’s
    conclusions. I conclude that (1) the trial court’s pro
    forma denial of the motion to discharge, predicated
    solely on the procedural ground that the discretionary
    stay was in effect, is a final judgment for appeal pur-
    poses pursuant to General Statutes § 52-325c (a) only
    when, in accordance with the rationale of Ahneman
    v. Ahneman, 
    243 Conn. 471
    , 
    706 A.2d 960
     (1998), the
    decision is construed properly as the functional equiva-
    lent of a denial of the motion on the merits under Gen-
    eral Statutes § 52-325b (b) (1); and (2) the court improp-
    erly relied on the stay to deny the motion to discharge
    because, as a matter of law, the motion is not subject
    to the stay. Accordingly, I would reverse the court’s
    denial of the motion to discharge and order the court
    on remand, irrespective of the discretionary stay, to
    hold a prompt hearing and to adjudicate the merits of
    Number Six’s probable cause claim raised in the motion
    in accordance with General Statutes §§ 52-325a and 52-
    325b. In addition, because I conclude that, as a matter
    of law, the motion to discharge is not subject to the
    discretionary stay, I further conclude that there is no
    practical relief that can be afforded to Number Six as
    to the denial of its motion to terminate stay. Rather
    than reversing the denial of the motion to terminate
    stay, as the majority, in effect, does in part II of its
    opinion, I would dismiss the portion of this appeal taken
    from that decision as moot. Accordingly, I concur in
    part and respectfully dissent in part.1
    I
    With respect to Number Six’s claims concerning the
    trial court’s denial of the motion to discharge, I agree
    with the majority that (1) the denial of the motion is a
    final judgment for appeal purposes and (2) the court
    improperly invoked the stay to deny the motion without
    a hearing and without reaching the merits of Number
    Six’s probable cause claim pursuant to §§ 52-325a and
    52-325b. As I will more fully explain, however, the
    majority and I take divergent paths to reach these con-
    clusions.
    A
    I first turn to the threshold legal question of whether
    the denial of the motion to discharge constitutes a final
    judgment for appeal purposes. As the majority recog-
    nizes, there is no dispute that the denial of the motion
    to discharge is an interlocutory ruling. I agree with the
    majority that, pursuant to § 52-325c (a), the denial of the
    motion to discharge is subject to immediate appellate
    review. Unlike the majority, however, I conclude that
    this determination hinges on an application of the rea-
    soning of Ahneman v. Ahneman, supra, 
    243 Conn. 471
    ,
    to construe the pro forma denial of the motion to dis-
    charge as the functional equivalent of a denial of the
    motion on the merits under § 52-325b (b) (1).
    In light of the plain and unambiguous language of
    §§ 52-325a, 52-325b, and 52-325c, as recited in part I A
    of the majority opinion, I conclude that, facially, the
    denial of the motion to discharge in the present case
    is outside of the purview of § 52-325c (a) because it is
    not an ‘‘order entered as provided in subsection (b) of
    section 52-325b . . . .’’ General Statutes § 52-325c (a).
    Read together, § 52-325b (a) and (b) contemplate the
    court’s conducting a hearing and making certain proba-
    ble cause determinations in connection with issuing an
    order pursuant to § 52-325b (b). In the present matter,
    the court did not hold the statutorily required hearing
    or make any probable cause findings in connection with
    denying the motion to discharge. In addition, the court’s
    denial of the motion to discharge rested solely on the
    discretionary stay, which is a procedural ground wholly
    absent from § 52-325b (b).
    I do not agree with the majority’s determination that
    construing the relevant statutes to mandate a hearing
    and probable cause findings in order for the denial of
    the motion to discharge to constitute a final judgment
    for appeal purposes leads to bizarre and unworkable
    results. Indeed, as our Supreme Court has recognized,
    the statutory scheme of which §§ 52-325a, 52-325b, and
    52-325c are a part is limited in the breadth of appeals
    that it authorizes. See Dunham v. Dunham, 
    217 Conn. 24
    , 39, 
    584 A.2d 445
     (1991) (concluding that orders
    entered pursuant to General Statutes § 52-325d,2 in con-
    trast to orders entered pursuant to § 52-325b, are not
    final judgments), overruled on other grounds by Santo-
    pietro v. New Haven, 
    239 Conn. 207
    , 
    682 A.2d 106
     (1996).
    In my view, reading the plain and unambiguous lan-
    guage of the statutes at issue to authorize appeals only
    from orders that strictly comport with § 52-325b (b)
    advances, rather than contravenes, the intent of the
    legislature. See General Statutes § 1-2z.
    My inquiry, however, does not end here. Although I
    conclude that the denial of the motion to discharge, on
    its face, is not a final judgment for appeal purposes
    pursuant to § 52-325c (a), our Supreme Court’s reason-
    ing in Ahneman v. Ahneman, supra, 
    243 Conn. 471
    ,
    persuades me to determine that the court’s decision,
    only when properly construed as the functional equiva-
    lent of a denial of the motion on the merits pursuant
    to § 52-325b (b) (1), is subject to immediate appellate
    review under § 52-325c (a).
    In Ahneman, a marital dissolution action, the defen-
    dant appealed from the granting of a postjudgment
    motion filed by the plaintiff seeking modification of
    the defendant’s unallocated alimony and child support
    obligation. Id., 474. Around the time that she had filed
    the appeal, the defendant filed several postjudgment
    motions concerning both financial and nonfinancial
    issues. Id., 474–75. The trial court agreed to adjudicate
    the defendant’s motions relating to nonfinancial issues,
    but it refused to consider her motions concerning finan-
    cial issues. Id., 476. Specifically, during a hearing, the
    court stated in relevant part: ‘‘I will not hear anything
    on monetary aspects because I think the law of the
    case was established as a result of [an] earlier hearing.
    It’s now on appeal.’’ (Internal quotation marks omitted.)
    Id., 477 n.7. The defendant amended her appeal to con-
    test the court’s refusal to consider her motions concern-
    ing financial issues. Id., 477. This court subsequently
    dismissed the amended appeal for lack of a final judg-
    ment. See id., 477 and n.10.
    After granting certification to appeal, our Supreme
    Court concluded that the trial court’s refusal to consider
    the defendant’s motions on financial issues constituted
    a final judgment for appeal purposes. See id., 478–79.
    The court observed that, ‘‘if the trial court formally had
    denied the defendant’s motions concerning financial
    issues, that decision would have constituted a final judg-
    ment.’’ Id., 480. The court continued: ‘‘The trial court’s
    decision not to consider the defendant’s motions was
    the functional equivalent of a denial of those motions.
    Like a formal denial, the effect of the court’s decision
    refusing to consider the defendant’s motions during the
    pendency of the appeal was to foreclose the possibility
    of relief from the court on those issues, unless and until
    the resolution of the appeal required further proceed-
    ings. Indeed, the refusal to consider a motion is more
    deserving of appellate review than a formal denial,
    because the defendant not only has been denied relief;
    she has been denied the opportunity even to persuade
    the trial court that she is entitled to that relief. More-
    over, at least with respect to a legitimate motion to
    modify financial aspects of a dissolution judgment,
    there is an unacceptable possibility that any harm suf-
    fered as a result of the court’s refusal to consider the
    motion will never be remediable. The original motion
    in this case was engendered by a change in the factual
    circumstances, and further changes may again have
    occurred by the time the court finally considers the
    defendant’s motions after the appeal is decided.’’ Id.
    I consider our Supreme Court’s reasoning in Ahne-
    man to be applicable to the narrow circumstances of
    the present action. Initially, I acknowledge that, unlike
    in Ahneman, the trial court in the present action issued
    an order denying the motion to discharge. As the court
    subsequently articulated, however, the denial was pro
    forma; in substance, the court refused to act on the
    motion to discharge in accordance with §§ 52-325a and
    52-325b—that is, by holding a prompt hearing and adju-
    dicating the merits of the motion—because of the dis-
    cretionary stay. Thus, I treat the court’s pro forma denial
    of the motion to discharge as a refusal to decide the
    motion under §§ 52-325a and 52-325b and, in turn, pur-
    suant to the rationale of Ahneman, as the functional
    equivalent of a denial of the motion on the merits under
    § 52-325b (b) (1). See Mundell v. Mundell, 
    110 Conn. App. 466
    , 476–77, 
    955 A.2d 99
     (2008) (citing Ahneman
    in construing denial of motion for modification of child
    support and alimony obligations as refusal to consider
    merits of motion when sole basis of denial was pen-
    dency of appeal taken from decision on prior motion
    for modification). As in Ahneman, had the court in the
    present action held the statutorily required hearing and
    denied the motion to discharge pursuant to § 52-325b
    (b) (1), that decision would have been a final judgment
    for appeal purposes. See General Statutes § 52-325c (a).
    In addition, as in Ahneman, the refusal by the court in
    the present action to proceed on the motion to dis-
    charge pending the discretionary stay ‘‘foreclose[d] the
    possibility of relief from the court’’ on the motion,
    unless and until the stay was lifted, and denied Number
    Six the ‘‘opportunity even to persuade the trial court
    that [it] was entitled’’ to the relief that it sought. Ahne-
    man v. Ahneman, supra, 
    243 Conn. 480
    . I recognize,
    as the plaintiff, Fairlake Capital, LLC, notes in its supple-
    mental memorandum, that the sui generis concerns
    associated with a motion to modify a dissolution judg-
    ment highlighted in Ahneman are not present in this
    case. See 
    id.
     Nevertheless, as the majority correctly
    explains in part I B of its opinion, Number Six is entitled
    to a prompt hearing on the motion to discharge and,
    from my perspective, is subject to interference with
    the alienability of its property so long as no additional
    action is taken on the motion.
    In sum, guided by our Supreme Court’s reasoning in
    Ahneman,3 I conclude that the pro forma denial of the
    motion to discharge is the functional equivalent of a
    denial of the motion on the merits pursuant to § 52-
    325b (b) (1) and, thus, constitutes a final judgment for
    appeal purposes under § 52-325c (a).
    B
    Having concluded that the denial of the motion to
    discharge constitutes a final judgment for appeal pur-
    poses, I next consider Number Six’s claim that the court
    improperly denied the motion to discharge on the basis
    of the discretionary stay. Like the majority, I conclude
    that the court committed error in relying on the discre-
    tionary stay to deny the motion to discharge without a
    hearing and without considering the merits of Number
    Six’s probable cause claim in accordance with §§ 52-
    325a and 52-325b. I respectfully disagree with the major-
    ity’s analysis, however, insofar as the majority frames
    the issue as one implicating the court’s discretion to
    terminate or to maintain the stay. In my view, the prelim-
    inary, and dispositive, issue is whether, in light of our
    Supreme Court’s decisions in Kukanskis v. Griffith,
    
    180 Conn. 501
    , 
    430 A.2d 21
     (1980), and Williams v.
    Bartlett, 
    189 Conn. 471
    , 475, 
    457 A.2d 290
    , appeal dis-
    missed, 
    464 U.S. 801
    , 
    104 S. Ct. 46
    , 
    78 L. Ed. 2d 67
    (1983), the motion to discharge is subject to the discre-
    tionary stay as a matter of law. I conclude that it is not,
    and, therefore, the discretionary stay had no bearing
    on the court’s ability to hear and to adjudicate the
    motion to discharge.
    I begin by setting forth the applicable standard of
    review. The inquiry here is not whether the court abused
    its discretion by failing to terminate the discretionary
    stay vis-à-vis the motion to discharge but, instead,
    whether the court committed error in failing to act on
    the motion to discharge in accordance with §§ 52-325a
    and 52-325b on the basis of its determination that the
    stay encompassed the motion to discharge, which pre-
    sents a question of law subject to plenary review. See
    Coleman v. Bembridge, 
    207 Conn. App. 28
    , 34, 
    263 A.3d 403
     (2021) (‘‘[i]t is axiomatic that a matter of law is
    entitled to plenary review on appeal’’ (internal quotation
    marks omitted)).
    Part I B of the majority opinion thoroughly summa-
    rizes the historical background underlying the statutory
    scheme governing notices of lis pendens, as well as our
    Supreme Court’s decisions in Kukanskis and Williams.
    As the majority recognizes, pursuant to Kukanskis and
    Williams, (1) Number Six’s constitutional right to pro-
    cedural due process entitles it to a hearing on the
    motion to discharge, with such hearing being held ‘‘at a
    meaningful time and in a meaningful manner’’ (internal
    quotation marks omitted); Williams v. Bartlett, 
    supra,
    189 Conn. 478
    ; Kukanskis v. Griffith, 
    supra,
     
    180 Conn. 510
    ; and (2) the hearing contemplated by §§ 52-325a
    and 52-325b must be ‘‘prompt . . . .’’ Williams v. Bart-
    lett, 
    supra, 480
    . In contrast to the majority, however, I
    apply the principles drawn from Kukanskis and Wil-
    liams to conclude that, as a matter of law, the motion
    to discharge is not subject to the discretionary stay. In
    other words, the discretionary stay does not function to
    preclude the court from hearing the motion to discharge
    and adjudicating the merits of Number Six’s probable
    cause claim in accordance with §§ 52-325a and 52-325b,
    such that no order terminating the stay for that purpose
    is necessary. This conclusion, I posit, protects Number
    Six’s aforementioned constitutional and statutory hear-
    ing rights. Moreover, like the majority, I expressly limit
    my analysis to the facts of this case, and I do not believe
    that my analysis would undermine a trial court’s broad
    authority to impose a discretionary stay.
    In sum, I conclude that the motion to discharge is
    not subject to the discretionary stay, and, therefore,
    the court improperly relied on the stay to deny the
    motion on procedural grounds. Accordingly, I would
    reverse the denial of the motion to discharge and direct
    the court on remand, without regard to the discretion-
    ary stay, to act in accordance with §§ 52-325a and 52-
    325b by conducting a prompt hearing on the motion
    and adjudicating the merits of the motion insofar as
    Number Six claims that there is no probable cause
    sustaining the validity of the plaintiff’s claims.4
    II
    Number Six also claims that the trial court improperly
    denied the motion to terminate stay. In part II of the
    majority opinion, the majority concludes that the court
    improperly denied the motion to terminate stay. In light
    of my conclusion in part I B of this concurring and
    dissenting opinion that the court committed error in
    denying the motion to discharge because, as a matter
    of law, the motion to discharge is not subject to the
    discretionary stay, I conclude that there is no practical
    relief that may be afforded to Number Six as to the
    denial of the motion to terminate stay. Therefore, rather
    than reversing the denial of the motion to terminate
    stay, I would dismiss the remaining portion of this
    appeal challenging that decision as moot.5
    ‘‘Mootness implicates [this] court’s subject matter
    jurisdiction and is thus a threshold matter for us to
    resolve. . . . It is a [well settled] general rule that the
    existence of an actual controversy is an essential requi-
    site to appellate jurisdiction; it is not the province of
    appellate courts to decide moot questions, discon-
    nected from the granting of actual relief or from the
    determination of which no practical relief can follow.
    . . . An actual controversy must exist not only at the
    time the appeal is taken, but also throughout the pen-
    dency of the appeal. . . . When, during the pendency
    of an appeal, events have occurred that preclude an
    appellate court from granting any practical relief
    through its disposition of the merits, a case has become
    moot.’’ (Internal quotation marks omitted.) Aldin Asso-
    ciates Ltd. Partnership v. State, 
    209 Conn. App. 741
    ,
    753, 
    269 A.3d 790
     (2022).
    In the motion to terminate stay, Number Six did not
    seek to terminate the discretionary stay in toto; rather,
    it moved to terminate the stay solely to permit it to file
    and to prosecute a motion to discharge the notice of
    lis pendens. As I previously explained in part I B of this
    concurring and dissenting opinion, the discretionary
    stay should not have affected the adjudication of the
    motion to discharge as a matter of law, and, conse-
    quently, it was unnecessary for Number Six to file the
    motion to terminate stay. Under my analysis in part I
    B of this concurring and dissenting opinion, Number
    Six would receive the relief that it seeks vis-à-vis the
    motion to terminate stay, namely, the ability to pursue
    the motion to discharge. Accordingly, I conclude that
    reviewing the merits of the denial of the motion to
    terminate stay would afford no practical relief to Num-
    ber Six, and, therefore, the remaining portion of this
    appeal taken from that decision is moot.6
    In sum, I would (1) reverse the judgment only as to
    the denial of the motion to discharge and remand the
    case with direction that the trial court, without taking
    action as to the discretionary stay, hold a prompt hear-
    ing and adjudicate the merits of the motion as to Num-
    ber Six’s probable cause claim in accordance with §§ 52-
    325a and 52-325b, and (2) dismiss the remainder of the
    appeal taken from the portion of the judgment denying
    the motion to terminate stay as moot.
    Accordingly, I concur in part I of the majority opinion,
    and I respectfully dissent from part II of the majority
    opinion.
    1
    The majority opinion aptly sets forth the facts and procedural history
    of this matter, and, therefore, I do not restate them here.
    2
    General Statutes § 52-325d provides: ‘‘In any action in which (1) a notice
    of lis pendens was recorded which is not intended to affect real property,
    or (2) the recorded notice does not contain the information required by
    subsection (a) of section 52-325 or section 46b-80, as the case may be, or
    (3) service of process or service of the certified copy of the notice of lis
    pendens was not made in accordance with statutory requirements, or (4)
    when, for any other reason, the recorded notice of lis pendens never became
    effective or has become of no effect, any interested party may file a motion
    requesting the court to discharge the recorded notice of lis pendens. If the
    court finds that such notice never became effective or has become of no
    effect, it shall issue its order declaring that such notice of lis pendens is
    invalid and discharged, and that the same does not constitute constructive
    notice. A certified copy of such order may be recorded in the land records
    of the town in which the notice of lis pendens was recorded.’’
    3
    I emphasize that my application of Ahneman in the present appeal is
    limited. The court’s refusal to proceed on the motion to discharge denied
    Number Six a prompt hearing afforded to it by statute and a decision on
    the merits of the motion to discharge, from which an immediate appeal
    could have been taken pursuant to § 52-325c (a). In other words, I do not
    construe Ahneman as enabling this court to provide immediate appellate
    review of every interlocutory order declining to consider the merits of
    a motion.
    4
    I agree with the majority that (1) the court’s denial of the motion to
    discharge as to Number Six’s claim that the notice of lis pendens is defective
    is not properly before this court on appeal, but (2) in the interests of judicial
    economy, it would be prudent for the trial court on remand to consider
    Number Six’s defective notice claim in addition to its probable cause claim.
    5
    Because I would dismiss the portion of this appeal taken from the denial
    of the motion to terminate stay as moot, it is unnecessary to address whether
    the denial of the motion constitutes a final judgment for appeal purposes.
    See Sovereign Bank v. Licata, 
    178 Conn. App. 82
    , 85 n.3, 
    172 A.3d 1263
    (2017) (declining to address finality of judgment question when appeal
    dismissed on mootness grounds).
    6
    In its supplemental memorandum, Number Six concedes that its claim
    as to the denial of the motion to terminate stay is rendered moot ‘‘if this
    court exercises its jurisdiction to address the merits of the trial court’s
    denial of the motion to discharge and remands this matter for a prompt
    hearing on the motion . . . .’’
    

Document Info

Docket Number: AC44622

Filed Date: 8/30/2022

Precedential Status: Precedential

Modified Date: 8/29/2022