Washington Trust Co. v. Smith

680 A.2d 988, 42 Conn. App. 330, 1996 Conn. App. LEXIS 408
CourtConnecticut Appellate Court
DecidedJuly 30, 1996
Docket13416
StatusPublished
Cited by11 cases

This text of 680 A.2d 988 (Washington Trust Co. v. Smith) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington Trust Co. v. Smith, 680 A.2d 988, 42 Conn. App. 330, 1996 Conn. App. LEXIS 408 (Colo. Ct. App. 1996).

Opinions

FOTI, J.

This is the appeal of the proposed defendants Spicer Plus, Inc. (Spicer), and John Holstein, trustee of City Discount Oil Nominee Trust (Holstein), from the judgment rendered by the trial court denying their motions to be made parties as of right1 to the underlying foreclosure action, and confirming the foreclosure by sale. The appellees are the plaintiff, Washington Trust [332]*332Company (Washington Trust), which is the holder of the mortgage being foreclosed, and the intervening defendant Hendel’s Investors Company (Hendel’s), the highest bidder at the foreclosure sale.

In February, 1990, the defendant, Marie D. Smith, executed a note to Washington Trust in the principal amount of $110,000. The note was secured by a mortgage on a parcel of land in North Stonington. Upon Smith’s default, Washington Trust sought to foreclose the mortgage. A judgment of foreclosure by sale was rendered on December 9, 1993. On February 10, 1994, Holstein acquired Smith’s equity of redemption by way of a quitclaim deed. A foreclosure sale was held on February 12, 1994. Hendel’s was the highest bidder at the foreclosure sale and was therefore made a party defendant on February 18, 1994. Spicer operated a gas station and convenience store on the North Stonington property at the time of the December 9, 1993 judgment and on the date of the sale pursuant to a lease dated April 1, 1988; it was not named a defendant in the original complaint, nor did it move to intervene as a defendant before the sale took place. Spicer did, however, actively bid at the sale.

On February 16,1994, Spicer attempted to redeem the property from Washington Trust. Likewise, on February 28, 1994, Holstein sought to exercise the equity of redemption; both attempts to redeem were rejected. On February 28, the trial court confirmed the foreclosure sale.2 On that same day, Spicer and Holstein moved to be made defendants for the purpose of taking an appeal from the court’s order confirming the sale. They claimed that the court lacked jurisdiction to confirm the sale because they had previously redeemed the premises. The trial court denied the motions.

On March 17, 1994, Spicer and Holstein timely filed this appeal from both the judgment confirming the sale [333]*333and the denial of their motions to be made defendants. On March 21, 1994, Spicer and Holstein filed a motion for articulation with the trial court, asking the court to articulate (1) whether Spicer or Holstein has a right to redeem the property; (2) if they did not possess such a right, why not; and (3) the reasons they were not considered necessary parties to the foreclosure action. A hearing on the motion for articulation was held on April 13,1994, and the trial court filed a lengthy articulation on April 28, 1994.

In denying their motions to intervene, the trial court found that at the February 28, 1994 hearing neither Spicer nor Holstein “made any attempt to introduce, nor did they introduce any testimony or evidence whatsoever, in support of their motions to intervene, to establish what interests, if any, they had in the premises foreclosed, or regarding their alleged tenders to the plaintiff, to redeem.” The trial court also concluded that the motions to intervene were untimely filed.* *3

As a preliminary matter, we address Hendel’s challenge4 to Spicer and Holstein’s appeal contesting the judgment confirming the sale by foreclosure because they were not made parties to the underlying proceeding.

“ ‘Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.’ ” Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990); Housing Authority v. [334]*334Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).

“It is well established that the right to appeal is purely statutory and is accorded only if the conditions fixed by statute are met .... General Statutes § 52-263 provides that in proceedings before the Superior Court, ‘if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment . . . .’ The right to appeal is therefore limited to parties who are aggrieved by a final judgment of the trial court.” (Citations omitted; emphasis added.) Durso v. Misiorek, 200 Conn. 656, 660, 512 A.2d 917 (1986); see also In re Juvenile Appeal (Anonymous), 181 Conn. 292, 293-94, 435 A.2d 345 (1980). The fact that the appellants may have participated in proceedings in the trial court does not make them parties or entitle them to appeal from the court’s judgment. See Hispanic Society v. New York City Police Dept., 806 F.2d 1147, 1153 (2d Cir. 1986), aff'd sub nom. Marino v. Ortiz, 484 U.S. 301 108 S. Ct. 586, 98 L. Ed 2d 629 (1988). Rather, as nonparties claiming to be adversely affected by a trial court’s judgment, they must seek the court’s permission to intervene for purposes of appealing that judgment. General Statutes § 52-107; Practice Book § 99.® Spicer and Holstein filed such motions to intervene.

We cannot separate Spicer and Holstein’s appeal from the denial of their motions to intervene from their appeal of the order confirming the sale because the latter is dependent on the former. We must, therefore, [335]*335first address whether Spicer and Holstein have properly appealed from the judgment denying their motions to intervene.

“Any motion for intervention, whether permissive or of right, must be timely. . . . The timeliness of a motion for intervention, however, must be judged by all of the circumstances of the case. ... In any event, an untimely motion for intervention of right is not transformed automatically thereby into a motion for permissive intervention. The right to intervene is lost, not merely weakened, if it is not exercised in a timely fashion.” (Citations omitted.) Horton v. Meskill, 187 Conn. 187, 193-94, 445 A.2d 579 (1982).

The trial court refused to join Spicer as a party because of its failure to exercise its right to intervene until after judgment of foreclosure had been rendered and the sale of the premises had taken place. The trial court articulated that “Spicer’s motion was filed at an extremely late date in the foreclosure proceedings, and after the foreclosure sale had been held; notwithstanding that Spicer had been in possession of the premises foreclosed and had substantial advance notice of the sale, it had done nothing to seek party status prior to the sale date.”

A sign was posted on the property on January 10, 1994, announcing the upcoming sale; as a tenant in possession of the property, Spicer had notice for at least one month before the sale took place.

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Cite This Page — Counsel Stack

Bluebook (online)
680 A.2d 988, 42 Conn. App. 330, 1996 Conn. App. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-trust-co-v-smith-connappct-1996.