Mac's Car City, Inc. v. Diloreto , 39 Conn. App. 518 ( 1995 )

HENNESSY, J.

The defendants, Pelino S. DiLoreto and Joanne DiLoreto,¹ appeal from the final judgment of foreclosure of a judgment lien rendered on January 31, 1994. The defendants claim that the trial court improperly found that the judgment lien perfected an interest secured by an attachment filed on June 6, 1980. We agree and reverse the judgment of the trial court.

This appeal arises out of more than fifteen years of litigation commencing with a contract action filed by the plaintiff against Pelino S. DiLoreto on June 6, 1980. At the time the action was filed, the plaintiff obtained an ex parte prejudgment attachment of Pelino S. DiLor-eto’s interest in real property located at 136 Apple Hill, Wethersfield. The property was owned by Pelino S. DiLoreto and his wife, Joanne DiLoreto, at the time of the attachment in 1980. On February 27, 1984, Pelino S. DiLoreto quitclaimed his interest in the property at 136 Apple Hill to his wife, making Joanne DiLoreto the sole owner of the property.

On March 31,1984, following trial, the court rendered judgment in favor of the plaintiff. The plaintiff took no action to preserve the interest secured by the prejudgment attachment. Pelino S. DiLoreto appealed, and, on September 22, 1987, this court reversed the judgment of the trial court on evidentiary grounds and remanded the case for a new trial. Mac’s Car City, Inc. v. DiLoreto, 12 Conn. App. 468, 471-77, 531 A.2d 177 (1987).

On July 16, 1990, following a second trial, judgment was rendered in favor of the plaintiff. Pelino S. DiLoreto timely appealed to this court. On October 2, 1990, the plaintiff, for the first time, filed a certificate of judgment lien on the property at 136 Apple Hill. Thereafter, on May 28, 1991, this court affirmed the judgment of the trial court. Mac’s Car City, Inc. v. DiLoreto, 24 Conn. App. 839, 591 A.2d 831, cert. denied, 220 Conn. 903, 593 A.2d 968 (1991). On August 7, 1991, the plaintiff filed the present action, seeking to foreclose on the judgment lien. The plaintiff filed a motion for summary judgment, which was granted by the trial court on April 8, 1993.² The final judgment of foreclosure was rendered by the trial court on January 31, 1994.

This appeal turns on the application of General Statutes § 52-328 (b), which provides: “No real estate that has been attached may be held subject to the attachment to respond to the judgment obtained in the suit, either against the debtor or any other creditor, unless the judgment creditor places a judgment hen on the real estate within four months after a final judgment.” The defendants argue that the trial court’s judgment of March 31, 1984, constituted a final judgment within the terms of § 52-328 (b) and, therefore, that the attachment was dissolved by operation of law when the plaintiff failed to file a judgment hen within four months of that date.

In granting summary judgment for the plaintiff, the trial court found that the prejudgment attachment filed on June 6,1980, survived the September 22,1987 reversal and remand order. The trial court reasoned that this court’s reversal of the trial court’s judgment acted only to restore the parties to the position in which they had been prior to trial without resolving the issues between them. The trial court concluded that this restoration of the status quo precluded a finding that the attachment had been dissolved at any point during the appeal.

The reasoning of the trial court is consistent with the general rule. When “on appeal a [trial court] judgment is set aside, its effect is destroyed, and the parties are in the same condition as before it was rendered. The case remains on the docket of the trial court and when it goes back it is the same case and stands upon the court or jury docket just as it did before the appeal.” W. Maltbie, Connecticut Appellate Procedure (1957) § 345; see Reilly v. State, 119 Conn. 217, 221, 175 A. 582 (1934); Brennan v. Berlin Iron Bridge Co., 73 Conn. 412, 413-14, 47 A. 668 (1900).

Prejudgment attachments, however, are outside the scope of this general rule. A plaintiff must perfect a prejudgment attachment by filing a judgment lien within four months of the trial court’s final judgment or the plaintiff loses the benefit of the attachment. City National Bank v. Stoeckel, 103 Conn. 732, 738-39, 132 A. 20 (1926).³ The pendency of an appeal from the final judgment of the trial court does not stay the time for-filing a judgment lien. Id. Although the Stoeckel court explained that if an appeal results in a reversal of the trial court’s judgment the certificate of judgment lien “would be, of course, nugatory,” it clearly stated that a prevailing plaintiff who desires to have the advantage of his attachment must file a certificate of judgment lien within the statutory period regardless of the pendency of an appeal. Id. The rationale behind this rule, as explained in Stoeckel by Justice Maltbie, is that subsequent parties obtaining an interest in the attached property should be able to rely on the plaintiffs failure to file a judgment lien and to obtain their interest free of the unperfected attachment. Id., 739.⁴

In Stoeckel, our Supreme Court explicitly held that if a judgment lien is not filed within the statutory period following a final judgment of the trial court, that judgment lien cannot be found to perfect a prejudgment attachment. Id., 738-39. Following Stoeckel, we hold in this case that the plaintiffs failure to file a certificate of judgment hen within four months of the trial court’s final judgment of March 31, 1984, precluded the plaintiffs subsequent filing of a judgment lien to perfect the attachment. We note, however, that even though the judgment hen filed on October 2,1990, does not perfect an interest secured by the attachment of June 6, 1980, the judgment hen is not necessarily invalid. The filing of an attachment is not a prerequisite to a valid judgment hen. From the time a certificate of judgment hen is recorded on the land records “the money judgment [is] a hen on the judgment debtor’s interest in the real property described [in the judgment lien].” General Statutes § 52-380a (b). The defendants maintain that at the time of the recording of the certificate of judgment hen, Pelino S. DiLoreto, the judgment debtor, had no interest in the property described in the certificate. Only if that is in fact the case is the judgment hen invalid.

The judgment is reversed as to the determination of the validity of the prior attachment and the case is remanded for a determination of the validity of the judgment lien.

In this opinion FREEDMAN, J., concurred.

1 This action to foreclose on a judgment lien was initially brought against Pelino S. DiLoreto, Joanne DiLoreto, and a number of other parties having interests in the property that was subject to the lien. This appeal is brought solely by the DiLoretos. We will refer to them in this opinion as the defendants.

2 On April 21,1993, the defendants appealed from the trial court’s granting of summary judgment. The appeal was dismissed as premature. Mac’s Car City, Inc. v. DiLoreto, 33 Conn. App. 131, 634 A.2d 1187 (1993).

3 Stoeckel turned on the application of General Statutes (1918 Rev.) § 5233, a precursor to General Statutes § 52-380a (b), which provides in relevant part: “If, within four months of judgment, the lien is placed on real property which was previously attached in the action, the lien on that property shall hold from the date of attachment . . . .” Our application of Stoeckel to the interpretation of § 52-328 (b), which controls the duration of attachment liens after judgment, reflects the fact that § 52-328 (b) and § 52-380a (b) operate together to provide a four month period after judgment in which to perfect a prejudgment attachment of real property and that after the four month period an unperfected attachment is dissolved, thereby allowing new parties to obtain interests in the property free of the unperfected attachment.

4 In Alien v. Adams, 17 Conn. 67, 76-77 (1845), a case factually similar to the case at hand, our Supreme Court applied the general rule that a reversal by an appellate court restores the parties to the position that they were in prior to the final judgment of the trial court, and held that a prejudgment attachment survived the appeal. As the effect of Stoeckel is to contradict the holding of Allen in application to prejudgment attachments, we find that Allen is no longer controlling in cases involving attachments, although it continues to enunciate the general rule for other situations. See, e.g., Osterlund v. State, 135 Conn. 498, 501, 66 A.2d 383 (1949); Reilly v. State, supra, 119 Conn. 221; Brennan v. Berlin Iron Bridge Co., supra, 73 Conn. 413-14.