Fairlake Capital, LLC v. Lathouris

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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 . . . .’’