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declining to interpret statute in manner that would lead to absurd consequences or bizarre results
Summary of this case from Jakobowski v. StateOpinion
AC 44622
08-30-2022
FAIRLAKE CAPITAL, LLC v. Peter LATHOURIS et al.
Danielle J. B. Edwards, with whom, on the brief, was Peter V. Lathouris, Stamford, for the appellant (defendant Number Six, LLC). Patrick McCabe, Stamford, with whom, on the brief, was Yan Margolin, pro hac vice, for the appellee (plaintiff).
Danielle J. B. Edwards, with whom, on the brief, was Peter V. Lathouris, Stamford, for the appellant (defendant Number Six, LLC).
Patrick McCabe, Stamford, with whom, on the brief, was Yan Margolin, pro hac vice, for the appellee (plaintiff).
Bright, C. J., and Prescott, Elgo, Moll, Cradle, Alexander, Suarez, Clark and DiPentima, Js.
BRIGHT, C. J.
The defendant Number Six, LLC (Number Six), appeals from the order of the trial court denying its motion to discharge a notice of lis pendens (motion to discharge) recorded by the plaintiff, Fairlake Capital, LLC. Number Six also appeals from the order of the court denying its motion to lift a discretionary stay in the underlying proceedings to allow it to pursue the motion to discharge. Our disposition of this appeal hinges on two issues that concern the denial of the motion to discharge. First, as a threshold matter implicating our subject matter jurisdiction, we must determine whether the denial of the motion to discharge is
The plaintiff's complaint named Peter Lathouris, Patricia Spanos Lathouris, and Continental Mortgage Banking, Ltd., as additional defendants, but those parties are not participating in this appeal. For clarity, we refer to Peter Lathouris, Patricia Spanos Lathouris, Continental Mortgage Banking, Ltd., and Number Six collectively as the defendants and individually by their names as designated in this opinion.
a final judgment for appeal purposes. If we answer that question in the affirmative, the second issue is whether the court abused its discretion by denying the motion to discharge, without holding a hearing and adjudicating the merits of the motion in accordance with General Statutes §§ 52-325a and 52-325b, solely on the procedural ground that the discretionary stay was in place. Number Six claims that the denial of the motion to discharge is a final judgment and that the court improperly denied the motion to discharge on the basis of the discretionary stay. The plaintiff, on the other hand, maintains that (1) no final judgment exists, or, alternatively, (2) the court properly denied the motion to discharge on the basis of the discretionary stay. We conclude that (1) the denial of the motion to discharge is a final judgment for appeal purposes and (2) the court abused its discretion when it relied on the discretionary stay to deny Number Six's motion to discharge. We further conclude that our resolution of Number Six's claim concerning its motion to discharge necessarily resolves the question of whether the court should have lifted the discretionary stay to permit a hearing on that motion.
As we further explain in part I of this opinion, in the motion to discharge, Number Six raised two grounds on which it sought to discharge the notice of lis pendens, only one of which (lack of probable cause) is relevant to this appeal.
On November 22, 2021, Number Six filed a motion to strike portions of the plaintiff's appellate brief that cited the COVID-19 pandemic as a basis supporting the court's denials of the motion to discharge and the motion to terminate stay, arguing that such references were improper. On November 23, 2021, the plaintiff filed an objection. On January 5, 2022, this court denied the motion to strike without prejudice to Number Six raising its arguments supporting the motion to strike in its reply brief. Number Six has reasserted these arguments in its reply brief. In light of our resolution of this appeal, we need not decide whether the plaintiff's references to the COVID-19 pandemic in its appellate brief were improper.
The following facts and procedural history are relevant to our resolution of this appeal. On August 1, 2017,
the plaintiff commenced the present action against Peter Lathouris (Peter), Patricia Spanos Lathouris (Patricia), Continental Mortgage Banking, Ltd. (Continental), and Number Six. The plaintiff's four count complaint asserts claims of fraudulent transfer against the defendants in violation of the Connecticut Uniform Fraudulent Transfer Act (CUFTA), General Statutes § 52-552a et seq., against the defendants.
Counts one and two of the complaint assert claims of fraudulent transfer in violation of General Statutes §§ 52-552e and 52-552f of CUFTA, respectively, against Peter, Patricia, and Number Six. Counts three and four of the complaint assert claims of fraudulent transfer in violation of §§ 52-552e and 52-552f of CUFTA, respectively, against all four defendants.
In support of those claims, the plaintiff alleged the following facts in its complaint. In April, 2017, the plaintiff commenced an action against Peter and Patricia claiming breach of guaranty and unjust enrichment. See Fairlake Capital, LLC v. Lathouris , Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-17-6031982-S (August 13, 2019) ( 69 Conn. L. Rptr. 168, 2019 WL 4667984 ) (guaranty action), aff'd, 210 Conn. App. 801, 271 A.3d 689, cert. denied, 343 Conn. 928, 281 A.3d 1186 (2022). On May 12, 2017, Peter and Patricia purchased real property located in New Canaan (property) for $1.9 million. That same day, for consideration in the sum of one dollar, Peter and Patricia quitclaimed the property to Number Six, which was formed two days before the sale and which at all relevant times was owned, controlled, or dominated by Peter and/or Patricia. Additionally, on May 12, 2017, Continental, which was formed in 1990 and which is owned, operated, managed, or dominated by Peter and/ or Patricia, extended a mortgage loan to Number Six in the sum of $2.5 million. A portion of the mortgage loan was used to pay the sellers of the property, with Number Six retaining the balance of the funds. As relief, the plaintiff seeks, inter alia, avoidance of the alleged
fraudulent transfer of the property and of the alleged fraudulent mortgage loan.
The parties do not dispute that the plaintiff, on the basis of its fraudulent conveyance claims, recorded a notice of lis pendens against the property. The plaintiff appended a copy of the notice of lis pendens, dated July 28, 2017, to its complaint.
On October 15, 2018, the plaintiff filed a motion to stay the present action pending the resolution of the guaranty action, which, according to the plaintiff, was scheduled at the time to be tried in April, 2019. On December 14, 2018, after initially having objected to the motion to stay, the defendants consented to the trial court staying the present action for three months. On January 14, 2019, the court, Lee, J ., upon the parties’ consent, stayed the present action until March 15, 2019.
On October 31, 2019, the defendants filed a motion to terminate the discretionary stay, contending that, since March 15, 2019, the present action had been "informally stayed by agreement with the consent of the court" but that they no longer assented to the stay. On December 3, 2019, the plaintiff filed an objection. On January 9, 2020, the court denied the defendants’ motion, determining that "[t]he rationale for the original stay of this action remains valid. The resolution of this case is heavily dependent upon the result of the trial on the merits in [the guaranty action]. As a result, the possibility of an inconsistent result is substantial. The continuation of the stay until the [guaranty action] is resolved will promote judicial economy."
On August 28, 2019, with the defendants’ consent, the plaintiff filed a second motion to stay the present action pending the outcome of the guaranty action, in which proceedings were ongoing at the time following the denial of a motion for summary judgment filed by Peter and Patricia. The court did not adjudicate the second motion to stay.
On August 21, 2020, Number Six filed a motion to terminate the discretionary stay, asserting that it
intended to file, inter alia, a motion to discharge the notice of lis pendens that the plaintiff had recorded against the property. Number Six stated that an appeal had been filed in the guaranty action, thereby delaying resolution of that separate matter. On September 14, 2020, the plaintiff filed an objection, arguing, inter alia, that any delays in the guaranty action were caused by Peter and Patricia and that there had been no change in circumstances warranting a termination of the stay. On September 18, 2020, Number Six filed a reply brief. On September 21, 2020, the court, Ozalis, J. , denied Number Six's motion and sustained the plaintiff's objection "[f]or the reasons stated in the plaintiff's objection ... and as the rationale for the original stay of this action remains ...." On October 29, 2020, Number Six filed a motion to reargue, which the court summarily denied on December 2, 2020.
On January 29, 2020, Peter and Patricia appealed from the denial of a motion for summary judgment, predicated in part on the doctrine of res judicata, that they had filed in the guaranty action. See Fairlake Capital, LLC v. Lathouris , 210 Conn. App. 801, 802–803, 271 A.3d 689, cert. denied, 343 Conn. 928, 281 A.3d 1186 (2022). On March 1, 2022, this court affirmed that judgment. See id., at 803, 271 A.3d 689.
On February 16, 2021, Number Six filed the motion to terminate stay at issue in this appeal, requesting that the discretionary stay be lifted for the limited purpose of enabling it to file a motion to discharge the notice of lis pendens. That same day, Number Six filed the motion to discharge, claiming that (1) the plaintiff lacks probable cause to sustain the validity of its claims asserted against Number Six and (2) the notice of lis pendens is defective and, thus, "void and of no force or effect." On March 12, 2021, the plaintiff filed a combined objection to both motions. On March 24, 2021, Number Six filed a reply brief. On March 29, 2021, the court summarily denied both motions and, in addition, summarily sustained the plaintiff's objection. On April 1,
2021, Number Six filed this appeal challenging the denials of both motions.
On June 22, 2021, the plaintiff filed with this court a corrected motion to dismiss this appeal for lack of a final judgment. On July 2, 2021, Number Six filed an objection. On July 28, 2021, while the corrected motion to dismiss was pending, this court, sua sponte, ordered the trial court to articulate whether its denial of the motion to discharge and its order sustaining the plaintiff's objection "were based on the merits or were procedural because of the stay of this case." On July 29, 2021, the trial court articulated that the "orders denying the motion to discharge and sustaining the objection thereto were procedural because of the stay of this case." That same day, this court granted the plaintiff's corrected motion to dismiss this appeal for lack of a final judgment.
The plaintiff filed its original motion to dismiss this appeal on June 3, 2021, but subsequently withdrew that motion and filed the corrected motion to dismiss to correct an erroneous reference.
On August 9, 2021, Number Six filed a motion to reconsider this court's judgment of dismissal. On August 17, 2021, the plaintiff filed an objection. On September 3, 2021, while the motion to reconsider was pending, this court ordered, sua sponte, the parties to file supplemental memoranda to address the following two issues: (1) whether, in light of the trial court's articulation stating that its denial of the motion to discharge was " ‘procedural,’ " our Supreme Court's decision in Ahneman v. Ahneman , 243 Conn. 471, 706 A.2d 960 (1998), "appl[ies] such that [Number Six], as to the denial of the motion to discharge ... has filed its appeal from a final judgment"; and (2) "[i]f this court concludes that [Number Six] has appealed from a final judgment as to the denial of the motion to discharge ... because Ahneman applies, [whether] this court
[should] remand the case for a prompt hearing on the motion to discharge, or [whether] there [are] other issues in this appeal that would remain to be addressed as to the denial of that motion ...." The parties filed supplemental memoranda in accordance with our briefing order.
On October 6, 2021, we granted the motion to reconsider and denied the corrected motion to dismiss without prejudice to the parties addressing the final judgment issue in their respective appellate briefs, as augmented by their supplemental memoranda. In addition, we ordered that this appeal would be heard en banc.
Number Six filed its principal appellate brief prior to the October 6, 2021 order. Following the October 6, 2021 order, the plaintiff filed an appellate brief, and, thereafter, Number Six filed a reply brief.
I
We first address the portion of this appeal taken from the trial court's denial of the motion to discharge based solely on the existence of a discretionary stay of the underlying proceedings. Number Six claims that (1) the denial of the motion to discharge is a final judgment for appeal purposes and (2) the court, in denying the motion to discharge, improperly relied on the stay to decline to hold a hearing and to address the merits of the motion pursuant to §§ 52-325a and 52-325b. The plaintiff maintains that (1) there is no final judgment or, in the alternative, (2) the court correctly denied the motion to discharge based on the stay. For the reasons that follow, we conclude that (1) the denial of the motion to discharge is an appealable final judgment and (2) the court abused its discretion when it relied on the discretionary stay to decline to conduct a hearing and to adjudicate the merits of the motion to discharge in accordance with §§ 52-325a and 52-325b.
For clarity and ease of discussion, we have reordered the claims as they are set forth in Number Six's brief.
Before analyzing Number Six's claims, we briefly clarify the scope of its appeal as to the denial of the motion to discharge. In the motion to discharge, Number Six raised the following two independent grounds to support its motion: (1) the plaintiff lacks probable cause to sustain the validity of its claims against Number Six; and (2) the notice of lis pendens is defective and, thus, "void and of no force or effect." These distinct grounds are governed by different statutory provisions. See Dunham v. Dunham , 217 Conn. 24, 35–38, 584 A.2d 445 (1991) ("When a property owner challenges the existence of probable cause for the validity of the lis pendens claim, resolution of this application for discharge is governed by General Statutes §§ 52-325a, 52-325b and 52-325c. ... When, however, a property owner files a motion for discharge alleging an invalid notice of lis pendens, resolution of this motion is governed in its entirety by General Statutes § 52-325d." (Footnote omitted.)), overruled on other grounds by Santopietro v. New Haven , 239 Conn. 207, 682 A.2d 106 (1996).
In its appellate briefs, Number Six argues that the court precluded it from "holding the plaintiff to its proof" on the issue of probable cause. Number Six also cites §§ 52-325a and 52-325b, which are relevant to its probable cause claim, but it does not refer to § 52-325d, which applies to the second ground in its motion, i.e., that the notice of lis pendens is defective. Moreover, in its principal appellate brief, Number Six raises an argument addressing the merits of whether probable cause exists; however, the brief is silent as to the merits of Number Six's claim that the notice of lis pendens is "void and of no force or effect" because it is defective. Finally, unlike an order based on § 52-325b, an order based on § 52-325d is not an immediately appealable final judgment. See Dunham v. Dunham , supra, 217 Conn. at 40, 584 A.2d 445. For these reasons, we construe Number Six's
claim on appeal as to the denial of the motion to discharge to be limited to its probable cause claim, and we limit our review accordingly. See footnote 19 of this opinion.
During oral argument, Number Six's counsel made several brief comments regarding purported defects in the notice of lis pendens. We do not infer from these comments that Number Six is challenging the denial of the motion to discharge with respect to its claim that the notice of lis pendens is defective. Assuming arguendo that Number Six's counsel attempted to raise such a claim during oral argument, it is well settled that a party cannot raise a claim on appeal for the first time during oral argument. See, e.g., Grimm v. Grimm , 276 Conn. 377, 393, 886 A.2d 391 (2005) ("claims on appeal ... cannot be raised for the first time at oral argument before the reviewing court"), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006) ; see also Traylor v. State , 332 Conn. 789, 809 n.17, 213 A.3d 467 (2019) ("[r]aising a claim at oral argument is not ... a substitute for adequately briefing that claim").
In addition, we note that our review of Number Six's claims as to the denial of the motion to discharge requires us to construe statutes governing notices of lis pendens. "The construction of a statute is a question of law subject to de novo review. ... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. ... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation and [common-law] principles governing the same general subject matter ...." (Citation omitted; internal quotation marks omitted.) Aldin Associates Ltd. Partnership v. State , 209 Conn. App. 741, 767, 269 A.3d 790 (2022).
A
At the outset, because the issue raises a question regarding our subject matter jurisdiction, we consider whether the denial of the motion to discharge constitutes a final judgment. Number Six argues that, pursuant to the controlling statutes, a denial of a motion to discharge a notice of lis pendens is a final judgment. The plaintiff argues that the court's order denying the motion is not a final judgment because the court never heard the motion on the merits but, instead, denied it solely because of the stay it had entered in the case. Relying on our Supreme Court's decision in Prevedini v. Mobil Oil Corp. , 164 Conn. 287, 320 A.2d 797 (1973), the plaintiff argues that the court's order denying the motion to discharge was essentially the court's simply affirming its decision to leave the discretionary stay in place and is thus not an appealable final judgment. We agree with Number Six that the court's denial of the motion to discharge is, by statute, an appealable final judgment. We further conclude that Prevedini is inapplicable to the circumstances of this case.
We begin with the applicable legal principles regarding our jurisdiction. "The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear. ... We therefore must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim." (Citation omitted; internal quotation marks omitted.)
Wolfork v. Yale Medical Group , 335 Conn. 448, 459, 239 A.3d 272 (2020). "A determination regarding ... subject matter jurisdiction is a question of law ... [and, therefore] our review is plenary." (Internal quotation marks omitted.) Glastonbury v. Sakon , 172 Conn. App. 646, 651, 161 A.3d 657 (2017).
"The jurisdiction of the appellate courts is restricted to appeals from judgments that are final." (Internal quotation marks omitted.) Wolfork v. Yale Medical Group , supra, 335 Conn. at 459, 239 A.3d 272. "[T]he legislature may [however] deem otherwise interlocutory actions of the trial courts to be final judgments, as it has done by statute in limited circumstances. ... Alternatively, the courts may deem interlocutory orders or rulings to have the attributes of a final judgment if they fit within either of the two prongs of the test set forth in State v. Curcio , [191 Conn. 27, 31, 463 A.2d 566 (1983) ]. ... Under Curcio , the landmark case in the refinement of final judgment jurisprudence ... interlocutory orders are immediately appealable if the order or ruling (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them." (Internal quotation marks omitted.) Niro v. Niro , 314 Conn. 62, 67–68, 100 A.3d 801 (2014).
Here, it is undisputed that the denial of the motion to discharge is an interlocutory ruling. Accordingly, to be considered a final judgment for appeal purposes, the order must be subject to immediate appellate review either (1) by statute or (2) pursuant to the test articulated in Curcio . We conclude that, pursuant to the applicable statutes, any denial of a motion to discharge a notice of lis pendens under § 52-325b, including denials that occur in the absence of the required probable cause hearing and finding as to the merits of the motion, constitutes an appealable final judgment.
In discerning whether there is a statutory right to appeal from the denial of the motion to discharge, we
focus our attention on the statutory scheme governing applications and motions to discharge notices of lis pendens. Section 52-325a provides in relevant part: "(a) Whenever a notice of lis pendens is recorded against any real property pursuant to subsection (a) of section 52-325, the property owner, if the action has not then been returned to court, may make application, together with a proposed order and summons, to the superior court for the judicial district to which the action is made returnable, or to any judge thereof, that a hearing or hearings be held to determine whether such notice of lis pendens should be discharged. The court or judge shall thereupon order reasonable notice of such application to be given to the plaintiff and shall set a date or dates for the hearing or hearings to be held thereon. ...
"(c) If the action for which notice of lis pendens was recorded, is pending before any court, the property owner may at any time, unless the application under subsection (a) of this section has previously been ruled upon, move that such notice of lis pendens be discharged of record."
Section 52-325b provides in relevant part: "(a) Upon the hearing held on the application or motion set forth in section 52-325a, the plaintiff shall first be required to establish that there is probable cause to sustain the validity of his claim and, if the action alleges an illegal, invalid or defective transfer of an interest in real property, that the initial illegal, invalid or defective transfer of an interest in real property occurred less than sixty years prior to the commencement of the action. ...
"(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if (A) probable cause to sustain the validity of the claim is established or (B) in an action that alleges an illegal,
invalid or defective transfer of an interest in real property, probable cause to sustain the validity of the claim is established and the initial illegal, invalid or defective transfer of an interest in real property occurred less than sixty years prior to the commencement of the action, or (2) order such notice of lis pendens discharged of record if (A) probable cause to sustain the validity of the plaintiff's claim is not established or (B) in an action that alleges an illegal, invalid or defective transfer of an interest in real property, the initial illegal, invalid or defective transfer of an interest in real property occurred sixty years or more prior to the commencement of the action."
Section 52-325c (a) provides: "Any order entered as provided in subsection (b) of section 52-325b shall be deemed a final judgment for the purpose of appeal." An appeal from an order entered pursuant to § 52-325b (b) is subject to a seven day appeal period. See General Statutes § 52-325c (b).
Number Six filed this appeal within seven days of the denial of the motion to discharge.
Section 52-325c (a) plainly states that "[a]ny order entered as provided in subsection (b) of section 52-325b " constitutes a final judgment for the purpose of appeal. (Emphasis added.) Section 52-325b (b) expressly delineates two orders that a trial court may enter on an application or a motion to discharge a notice of lis pendens after conducting a prompt hearing and upon considering the facts before the court. Specifically, the court may either (1) deny the application or motion if probable cause is established and, in an action alleging an illegal, invalid, or defective transfer of an interest in real property, the alleged transfer occurred less than sixty years prior to the commencement of the action; see General Statutes § 52-325b (b) (1) ; or (2) issue an order discharging the notice of lis pendens if
probable cause is not established or, in an action alleging an illegal, invalid, or defective transfer of an interest in real property, the alleged transfer occurred sixty years or more prior to the commencement of the action. General Statutes § 52-325b (b) (2).
Although, read together, §§ 52-325a, 52-325b and 52-325c contemplate that the court will hold a hearing and make probable cause findings before ruling on a motion to discharge a notice of lis pendens, we do not construe those statutes as requiring a hearing and findings in order for the denial of such a motion to be an appealable final judgment. "We often have stated that it is axiomatic that those who promulgate statutes ... do not intend to promulgate statutes ... that lead to absurd consequences or bizarre results." (Internal quotation marks omitted.) Raftopol v. Ramey , 299 Conn. 681, 703, 12 A.3d 783 (2011). Accordingly, we will not construe statutes in a way that will lead to such results. See id. ; see also Derrane v. Hartford , 295 Conn. 35, 46 n.9, 988 A.2d 297 (2010) (declining to interpret statute in way that would lead to unworkable result because such result was "surely not what the legislature intended"); In re Corey E ., 40 Conn. App. 366, 374, 671 A.2d 396 (1996) (interpreting statute so as to avoid "bizarre and unworkable results and [advance] the policies that underpin the statute").
The legislature clearly intended for interlocutory orders denying a motion to discharge a notice of lis pendens to be immediately appealable. Although the legislature also intended that the Superior Court conduct a hearing and make findings before issuing such an order, it would make little sense to read §§ 52-325a, 52-325b and 52-325c as limiting appeals to those orders issued only after a hearing. Such an interpretation effectively would permit a trial court to thwart a party's right to appeal simply by not holding the required hearing. This outcome cannot be what the legislature intended
when it drafted this statutory scheme. See Derrane v. Hartford , supra, 295 Conn. at 46 n.9, 988 A.2d 297. In fact, it makes no sense that a party deprived of the process contemplated by the statutes would have fewer appellate rights than a party who was provided with the statutorily required process. Consequently, we do not believe that the legislature drafted §§ 52-325a, 52-325b and 52-325c to deprive a party of a right to appeal from the denial of a motion to discharge a notice of lis pendens in cases in which a probable cause hearing was not held and the required findings not made, given that (1) such a hearing and probable cause findings are statutorily required; see General Statutes §§ 52-325a and 52-325b ; and (2) the right to a probable cause hearing exists specifically to protect the constitutional rights of property owners. See part I B of this opinion. Thus, we conclude that any denial of a motion to discharge a notice of lis pendens that challenged the existence of probable cause constitutes a final judgment under § 52-325b (b) (1).
We also are not persuaded by the plaintiff's argument that our Supreme Court's decision in Prevedini v. Mobil Oil Corp ., supra, 164 Conn. 287, 320 A.2d 797, requires a different result. In Prevedini , the Mobil Oil Corporation (Mobil) leased property for a gas station from the plaintiff, Val Prevedini, for several years. Prevedini v. Mobil Oil Corp ., supra, at 288, 320 A.2d 797. During the lease period, Prevedini sold the property to another person. Id., at 289, 320 A.2d 797. Thereafter, Mobil commenced a civil action to enforce its right to buy the property under its lease agreement with Prevedini. Id., at 290, 320 A.2d 797. Prevedini then commenced a summary process action against Mobil seeking possession of the property because the lease had expired. Id. The trial court stayed the summary process proceedings, which concerned possession of the property, until the final adjudication of the civil action, which concerned the title to the property and would necessarily resolve
the question of the right to possession. Id., at 291, 320 A.2d 797. Prevedini sought appellate review of the stay order from the Appellate Division of the Superior Court. Id. Mobil claimed that the Appellate Division lacked jurisdiction over the appeal because there was no final judgment. Id. The Appellate Division vacated the stay order, and Mobil appealed to our Supreme Court. Id.
On appeal, our Supreme Court determined that the trial court's order staying the summary process action did not constitute a final judgment because the order did not determine finally the rights of the parties. The court held: "[T]he rights of the parties are not concluded so that further proceedings after the rendition of the stay order cannot affect them. There remains to be determined the very issue for which the summary process action was brought, namely, the question of possession of the premises. When that is resolved, following a trial before the Circuit Court, then a final judgment will result. The order of the Circuit Court is not a final judgment from which an appeal lies and the Appellate Division in denying Mobil's motion to dismiss for lack of jurisdiction and in vacating the stay of proceedings ordered by the Circuit Court was in error." Id., at 293–94, 320 A.2d 797.
The plaintiff argues that the holding of Prevedini applies in this case because the court did not resolve Number Six's motion to discharge on the merits but merely delayed resolution of the motion while the case is stayed. It argues that, when the court eventually hears the merits, and if it denies the motion to discharge, there will then be a final judgment from which Number Six may appeal. We are not persuaded for a number of reasons.
First, as previously discussed in this opinion, Number Six has a statutory right to appeal from the court's denial of the motion to discharge. That the court denied
the motion because it exercised its discretion not to lift the stay in the case does not alter this fact.
Second, as explained in part I B of this opinion, the statutory right to a prompt hearing on the motion to discharge has constitutional underpinnings, and Number Six has explicitly raised its constitutional right to a prompt hearing in this appeal. There is no indication in Prevedini that such a constitutional claim was made. In fact, the constitutional right to a prompt hearing on a motion to discharge a notice of lis pendens was not recognized by our Supreme Court until its decision in Kukanskis v. Griffith , 180 Conn. 501, 430 A.2d 21 (1980), which was decided seven years after Prevedini .
In reaching its conclusion in Kukanskis that due process requires that a property owner be permitted to challenge the notice of lis pendens at a meaningful time and in a meaningful manner, the court relied on its decision in Roundhouse Construction Corp . v. Telesco Masons Supplies Co ., 168 Conn. 371, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976), in which it reached the same conclusion as to mechanic's liens. See Kukanskis v. Griffith , supra, 180 Conn. at 508–509, 430 A.2d 21. Roundhouse Construction Corp . also was decided after Prevedini .
Finally, in Prevedini , the only issue on appeal was the court's stay order. In the present case, however, the court's order denying Number Six's motion to lift the stay so that it could pursue the motion to discharge is inextricably intertwined with the court's order denying the motion to discharge. Consequently, although the court's decision denying the motion to lift the stay is not by itself a final judgment, we may reach it because it is part of the final judgment. See Aqleh v. Cadlerock Joint Venture II, L.P. , 299 Conn. 84, 89, 10 A.3d 498 (2010) ("We recognize that the court's denial of [Cadlerock Joint Venture II, L.P.’s] motion to cite in [Wageeh S.] Aqleh as an additional defendant in the original action is not, by itself, a final judgment. Nevertheless, because that decision is inextricably intertwined with the trial
court's ruling granting the application to discharge the attachment, we conclude that the joint appeal is taken from appealable final judgments."). Accordingly, in the present case, the court's order denying Number Six's motion to discharge is a final judgment.
Because we conclude that § 52-325c provides a statutory right to appeal from any denial of a motion to discharge a notice of lis pendens under § 52-325b, we need not determine whether the court's denial of the motion to discharge constitutes a final judgment under either State v. Curcio , supra, 191 Conn. at 31, 463 A.2d 566, or Ahneman v. Ahneman , supra, 243 Conn. 471, 706 A.2d 960.
B
We now turn to Number Six's claim on the merits as to the denial of the motion to discharge. Number Six contends that the court improperly relied on the discretionary stay to decline to hold a hearing and to resolve the merits of the motion in accordance with §§ 52-325a and 52-325b. We agree.
We begin by setting forth the applicable standard of review. Whether the court properly refused to lift the discretionary stay to permit a hearing on the motion to discharge is subject to review for an abuse of discretion. See, e.g., Griffin Hospital v. Commission on Hospitals & Health Care , 196 Conn. 451, 459, 493 A.2d 229 (1985) ("[w]e have vested a large measure of discretion in trial judges in terminating or granting stays and, upon review, the issue usually is whether that discretion has been abused"). "When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court .... Under that standard, we must make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. ... [Our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did." (Citation omitted; emphasis added; internal
quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London , 135 Conn. App. 167, 190–91, 43 A.3d 679, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012) ; see also Ghio v. Liberty Ins. Underwriters, Inc ., 212 Conn. App. 754, 778, 276 A.3d 984 (2022) ("[t]he trial court's exercise of its discretion will be reversed only [when] the abuse of discretion is manifest or [when] injustice appears to have been done" (internal quotation marks omitted)).
We next summarize some important historical background underlying the statutory scheme governing notices of lis pendens. General Statutes § 52-325 establishes the procedure for recording a notice of lis pendens. In Kukanskis v. Griffith , supra, 180 Conn. 501, 430 A.2d 21,
General Statutes § 52-325 provides in relevant part: "(a) In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards, or (2) a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property, except that no such notice may be recorded in an action that alleges an illegal, invalid or defective transfer of an interest in real property unless the complaint or affirmative cause of action contains the date of the initial illegal, invalid or defective transfer of an interest in real property and such transfer has occurred less than sixty years prior to the commencement of such action. Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. ...
"(c) Notwithstanding the provisions of subsection (a) of this section, in any action except a suit to foreclose a mortgage or other lien, no recorded notice of lis pendens shall be valid or constitute constructive notice thereof unless the party recording such notice, not later than thirty days after such recording, serves a true and attested copy of the recorded notice of lis pendens upon the owner of record of the property affected thereby. ..."
in considering a claim that the trial court had dissolved without statutory authority a notice of lis pendens, our Supreme Court addressed whether General Statutes (Rev. to 1979) § 52-325 was "unconstitutional because it [did] not comply with the due process of law requirements of [the United States and Connecticut constitutions] in that it fail[ed] to provide for notice to property owners and an opportunity for them to be heard at a meaningful time and in a meaningful manner." Id., at 506–507, 430 A.2d 21. The court observed that "the effect of a notice of lis pendens sufficiently interferes with the alienability of real estate," such that the court was required to determine whether property owners were being afforded the "minimum of due process which is constitutionally required." Id., at 509, 430 A.2d 21. The court determined that, at the time, "the Connecticut lis pendens statutes fail[ed] to provide even the barest minimum of due process protection. Most conspicuously absent [was]
General Statutes (Rev. to 1979) § 52-325 provides in relevant part: "In any action in a court of this state or in a district court of the United States the plaintiff or his attorney, at the time the action is commenced or afterwards, or a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, if the same is intended to affect real estate, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of the pendency of the action, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property. Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. ..."
At the time of Kukanskis , as our Supreme Court noted, "[t]he filing of a [notice of] lis pendens require[d] no judicial action, no showing of probable cause and no notice to the defendant property owner. The party filing the [notice of] lis pendens [was] not required to post a bond or provide any surety to protect the owner against damages from an unsupportable claim. No opportunity [was] provided to the owner either before or after the recording of the [notice of] lis pendens to challenge its propriety. Moreover, no provision [was] made whereby the owner [could] apply for the dissolution of the [notice of] lis pendens upon the substitution of a bond with surety." Kukanskis v. Griffith , supra, 180 Conn. at 507, 430 A.2d 21.
any provision whatsoever for any sort of a timely hearing, either before or after the recording of the notice of lis pendens, which would give the property owner an opportunity to be heard or require the party recording the notice to demonstrate in any way the probability of prevailing on the underlying action. The statutes allow[ed] the notice of lis pendens to continue indefinitely without any further action on the part of the party recording it, during which time the property owner [was] without recourse to the courts to contest the merits of the underlying claim." (Footnote added.) Id., at 510, 430 A.2d 21. In sum, the court concluded that the "absence of a statutory provision for a hearing for the defendant property owner at a meaningful time and in a meaningful manner ... deprived him of his constitutional right to due process of law." (Citation omitted; internal quotation marks omitted.) Id., at 510–11, 430 A.2d 21.
In 1981, following Kukanskis , our legislature enacted No. 81-8 of the 1981 Public Acts (P.A. 81-8), which amended General Statutes (Rev. to 1979) § 52-325 to include language later codified, in part, in §§ 52-325a and 52-325b. See Public Acts 1981, No. 81-8, §§ 2 and 3; see also part I A of this opinion. Two years later, our Supreme Court in Williams v. Bartlett , 189 Conn. 471, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983), addressed whether § 52-325, as amended by P.A. 81-8, was constitutionally infirm on procedural due process grounds because, although it provided for a postfiling hearing, it failed to "contain a bonding provision or any other mechanism whereby the property owner may substitute security to obtain release of the [notice of] lis pendens ...." Id., at 476, 457 A.2d 290. The court concluded that the amended statute met the
minimum requirements of procedural due process. Id., at 480–81 and 481, 457 A.2d 290 n.6. Notably, in examining the amended statute, the court commented that "[t]he prompt postfiling hearing afforded under the [amended] statute eliminates the risk of an erroneous deprivation of property interests." (Emphasis added.) Id., at 480, 457 A.2d 290.
We glean two salient principles from Kukanskis and/ or Williams that guide us in resolving Number Six's claim. First, Number Six's constitutional right to procedural due process requires that it be afforded a hearing to address its probable cause claim raised in the motion to discharge, with such hearing being held "at a meaningful time and in a meaningful manner ...." (Internal quotation marks omitted.) Id., at 478, 457 A.2d 290 ; Kukanskis v. Griffith , supra, 180 Conn. at 510, 430 A.2d 21. Second, the hearing to which Number Six is entitled pursuant to §§ 52-325a and 52-325b must be "prompt ...." Williams v. Bartlett , supra, 189 Conn. at 480, 457 A.2d 290.
The plaintiff argues in its supplemental brief that the constitutional right discussed in Williams "is merely to have an ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ Implicit in the trial court's determination here, in refusing to lift the stay, was a finding that the three and one-half years that elapsed prior to [Number Six's] present motion to discharge was a sufficient opportunity , especially given [Number Six's] justifications for discharge—all of which, if true, would have existed since the day the lis pendens was filed." (Emphasis in original.) The plaintiff further argues that Number Six chose to forgo its opportunity by agreeing to the stay in this case. The record does not support the plaintiff's claim that the court made some implicit finding that Number Six waived its right to a prompt hearing. Furthermore, the fact that Number Six may have agreed to a stay of limited duration does not mean that it was forever waiving its statutory and constitutional right to a prompt hearing.
Pursuant to Kukanskis and Williams , we are compelled to conclude that the court abused its discretion when it denied Number Six's request to lift the stay for the purpose of going forward with a hearing on its motion to discharge. The record demonstrates that the stay, to which Number Six no longer consented at the time it filed the motion to discharge, is tied to the
ongoing proceedings in the guaranty action and, thus, is of indefinite duration. To conclude that the stay could permissibly preclude the adjudication of the merits of the motion to discharge would undermine Number Six's constitutional right to be heard on the motion to discharge "at a meaningful time and in a meaningful manner" (internal quotation marks omitted); id., at 478, 457 A.2d 290 ; Kukanskis v. Griffith , supra, 180 Conn. at 510, 430 A.2d 21 ; and its statutory right to a "prompt" hearing on the motion to discharge. Williams v. Bartlett , supra, at 480, 457 A.2d 290.
We are mindful of the well established principle that "[t]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." (Internal quotation marks omitted.) Lee v. Harlow, Adams & Friedman, P.C ., 116 Conn. App. 289, 311–12, 975 A.2d 715 (2009). Our holding does not weaken a court's broad authority to impose a discretionary stay. We merely elucidate that a discretionary stay of indefinite duration cannot function to infringe on a litigant's rights attendant to an application or a motion to discharge a notice of lis pendens as bestowed by §§ 52-325a and 52-325b, as well as constitutional guarantees of procedural due process. We underscore the limited breadth of our holding. In Kukanskis and Williams , our Supreme Court made clear that a litigant is entitled to swift judicial action with respect to an application or a motion to discharge a notice of lis pendens. Our holding accords with that mandate, and we expressly limit it to the circumstances present in this case.
As the COVID-19 pandemic has demonstrated, circumstances outside of the control of courts and litigants may arise that preclude prompt action on an application or a motion to discharge a notice of lis pendens. In the present action, however, there is nothing in the record indicating that there are external forces preventing the court and the parties from moving forward on the motion to discharge.
In sum, we conclude that the motion to discharge is not subject to a discretionary stay of indeterminate length, and, therefore, the court abused its discretion when it relied on the stay to deny the motion to discharge on procedural grounds. On remand, in accordance with §§ 52-325a and 52-325b, the court must conduct a prompt hearing on the motion to discharge and adjudicate the merits of the motion insofar as Number Six claims that there is no probable cause sustaining the validity of the plaintiff's claims.
As we explained in footnote 10 of this opinion and the accompanying text, Number Six has not briefed a claim challenging the denial of the motion to discharge on the basis of the discretionary stay with respect to the second ground raised in the motion asserting that the notice of lis pendens is defective. Accordingly, such a claim is not before us for review, and our remand order does not contain any direction to the court with regard to the second ground. Nevertheless, in the interests of judicial economy, we opine that it would be prudent for the court on remand to address Number Six's claim that the notice of lis pendens is defective in conjunction with the court's consideration of Number Six's probable cause claim.
II
We next address Number Six's remaining claim that the court improperly denied its motion to terminate the discretionary stay. Our determination in part I of this opinion that the court committed error in denying the motion to discharge by improperly relying on the discretionary stay necessarily resolves the question of
As discussed previously in this opinion, we properly may consider Number Six's claim concerning its motion to terminate the stay because this claim is inextricably intertwined with its claim that the court erred in denying its motion to discharge, which, as explained previously, is a final judgment. See part I A of this opinion; see also Clukey v. Sweeney , 112 Conn. App. 534, 542, 963 A.2d 711 (2009) ("in some circumstances, the factual and legal issues raised by a legal argument, the appealability of which is doubtful, may be so inextricably intertwined with another argument, the appealability of which is established that we should assume jurisdiction over both" (internal quotation marks omitted)); see also Collins v. Anthem Health Plans, Inc ., 266 Conn. 12, 29–30, 836 A.2d 1124 (2003) (permitting interlocutory appeal for certain claims when inextricably intertwined with other claims that were subject to interlocutory appeal pursuant to statute).
whether the court should have lifted the stay to permit the hearing on the motion to discharge to proceed. Accordingly, the discretionary stay must be lifted for the limited purpose of considering the merits of, and holding a hearing on, Number Six's motion to discharge.
The judgment is reversed as to the denial of Number Six's motion to discharge the notice of lis pendens and the case is remanded with direction to lift the discretionary stay for the purpose of holding a prompt hearing and adjudicating the merits of the motion to discharge in accordance with General Statutes §§ 52-325a and 52-325b and consistent with this opinion.
In this opinion PRESCOTT, ELGO, CRADLE, SUAREZ, CLARK and DiPENTIMA, Js., concurred.
MOLL, J., with whom ALEXANDER, J., joins, concurring 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 discretionary stay, I write separately because I respectfully disagree 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 purposes 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 equivalent of a denial of the motion on the merits under General Statutes § 52-325b (b) (1) ; and (2) the court improperly 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.
The majority opinion aptly sets forth the facts and procedural history of this matter, and, therefore, I do not restate them here.
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 conclusions.
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 recognizes, 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 reasoning of Ahneman v. Ahneman , supra, 243 Conn. 471, 706 A.2d 960, to construe the pro forma denial of the motion to discharge 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 probable 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, in contrast to orders entered pursuant to § 52-325b, are not final judgments), overruled on other grounds by Santopietro v. New Haven , 239 Conn. 207, 682 A.2d 106 (1996). In my view, reading the plain and unambiguous language 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.
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."
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 reasoning in Ahneman v. Ahneman , supra, 243 Conn. 471, 706 A.2d 960, persuades me to determine that the court's decision, only when properly construed as the functional equivalent 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 defendant 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., at 474, 706 A.2d 960. Around the time that she had filed the appeal, the defendant filed several postjudgment
motions concerning both financial and nonfinancial issues. Id., at 474–75, 706 A.2d 960. The trial court agreed to adjudicate the defendant's motions relating to nonfinancial issues, but it refused to consider her motions concerning financial issues. Id., at 476, 706 A.2d 960. 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., at 477 n.7, 706 A.2d 960. The defendant amended her appeal to contest the court's refusal to consider her motions concerning financial issues. Id., at 477, 706 A.2d 960. This court subsequently dismissed the amended appeal for lack of a final judgment. See id., at 477 and n.10, 706 A.2d 960.
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., at 478–79, 706 A.2d 960. 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 judgment." Id., at 480, 706 A.2d 960. 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 proceedings. 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. Moreover, at least with respect to a legitimate motion to modify financial aspects of a dissolution judgment,
there is an unacceptable possibility that any harm suffered 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 Ahneman 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 adjudicating the merits of the motion—because of the discretionary 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, pursuant 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 pendency 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 discharge 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. Ahneman v. Ahneman , supra, 243 Conn. at 480, 706 A.2d 960. I recognize, as the plaintiff, Fairlake Capital, LLC, notes in its supplemental memorandum, that the sui generis concerns associated with a motion to modify a dissolution judgment 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 , 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).
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.
B
Having concluded that the denial of the motion to discharge constitutes a final judgment for appeal purposes, 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 discretionary 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 majority'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 preliminary, 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 dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983), the motion to discharge is subject to the discretionary 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 presents 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 summarizes 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 procedural 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. at 478, 457 A.2d 290 ; Kukanskis v. Griffith , supra, 180 Conn. at 510, 430 A.2d 21 ; and (2) the hearing contemplated by §§ 52-325a and 52-325b must be "prompt ...." Williams v. Bartlett , supra, at 480, 457 A.2d 290. In contrast to the majority, however, I apply the principles drawn from Kukanskis and Williams 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 hearing 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 discretionary 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.
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.
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.
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).
"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 requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected 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 pendency 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 Associates 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, consequently, 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 Number Six, and, therefore, the remaining portion of this appeal taken from that decision is moot.
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 ...."
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 hearing and adjudicate the merits of the motion as to Number 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.