Altavista Inv. v. Makeeva

317 A.3d 850

226 Conn.App. 175

ALTAVISTA INVESTMENTS, LLC

v.Leyla MAKEEVA et al.

(AC 46885)

Appellate Court of Connecticut.

Argued March 11, 2024

Officially Released June 11, 2024

Matthew B. Gibbons, with whom was Patrick M. Fahey, Hartford, for the appellant (proposed intervenor Baotou Capital, LLC).

Elgo, Seeley and Westbrook, Js.

WESTBROOK, J.

₁₇₇In the underlying summary process eviction action (eviction action), the trial court rendered a judgment of possession against the defendant Leyla Makeeva and seven other defendants, in favor of the plaintiff, Altavista Investments, LLC.¹ See Altavista Investments, LLC v. Makeeva, 220 Conn. App. 901, 297 A.3d 285 (2023) (affirming judgment of possession). Baotou Capital, LLC (Baotou), which holds a note secured by a mortgage on residential property located ₁₇₈at 969 North Street in Greenwich (property), the property at issue in the eviction action, filed the present appeal from the denial of its postjudgment motion to intervene on the basis of an ownership interest it claims in use and occupancy payments made by the defendants in lieu of bond during the pendency of the prior appeal. See General Statutes § 47a-35a (a).² Baotou claims that the trial court improperly determined that, because it lacked any possessory interest in the property, it was not a proper party to the eviction action and, thus, also was not entitled to intervene in postjudgment proceedings pursuant to General Statutes § 47a-35b³ regarding the final distribution of the use and occupancy payments. We agree that the court improperly failed to permit Baotou to intervene as a matter of right and, accordingly, reverse the judgment of the court.

The record reveals the following relevant facts and procedural history. The plaintiff purchased the property in 2017.⁴ The plaintiff financed the purchase by executing a $4,940,000 note and a mortgage in favor of Baotou’s ₁₇₉predecessor in interest, Patriot Bank, N.A. (Patriot Bank).⁵ Pursuant to the terms of the mortgage, in addition to a security interest in the property, the plaintiff granted to Patriot Bank the plaintiff’s rights to "[a]ll of the rents, receipts, revenues, income, issues thereof and profits now due or which may become due or to which [the plaintiff] may now or hereafter shall become entitled … or may demand or claim, arising or issuing from or out of any and all using, leasing, licensing, possessing, operating from, residing in, selling or otherwise enjoying the [m]ortgaged [p]roperty or any part thereof …. " In addition to the note and mortgage, the plaintiff also executed a separate assignment of leases and rentals, which provided, in relevant part, an assignment of "[a]ll rents, additional rents, payments in connection with any termination, cancellation or surrender of any Lease, revenues, income, issues and profits arising from the Leases and renewals and replacements thereof and any cash or security deposited in connection therewith and together with all rents, revenues, income, issues and profits … from the use, ₁₈₀enjoyment and occupancy of the [p]roperty …." As part of the assignment of leases and rentals, Patriot Bank granted the plaintiff a revocable license to collect and receive rents and other sums due under any lease. This license automatically was to be revoked in the event of a default as set forth in the loan documents.

In October, 2019, the plaintiff entered into a purported multiyear arrangement with Makeeva to lease the property for quarterly payments of $60,000. In June, 2020, Patriot Bank commenced a mortgage foreclosure action (foreclosure action) against the plaintiff and its tenants, which remains ongoing. See Patriot Bank, N.A. v. Altavista Investments, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-20-6047105-S.

In August, 2021, the plaintiff commenced the underlying summary process eviction action alleging both nonpayment of rent and that the defendants’ right or privilege to occupy the property had terminated. On June 14, 2022, the court, Spader, J., issued a memorandum of decision concluding that, although the plaintiff had failed to meet its burden with respect to its claim of nonpayment of rent due to a lack of any enforceable lease, it nevertheless had prevailed with respect to its claim that any right of the defendants to occupy the property had terminated. The court rendered a judgment of possession in favor of the plaintiff with a stay of execution through July 31, 2022. The court also concluded that its "findings … regarding a lack of a rental agreement [do] not impact the plaintiff’s ability to ask for use and occupancy payments in the event of an appeal filed by the defendants."

The defendants Makeeva and Vladimir Lenskiy timely appealed from the judgment of possession and also filed a motion asking the court to order appropriate use and occupancy payments in lieu of an appeal bond ₁₈₁with surety. The court granted the motion, ordering the defendants to deposit monthly payments of $24,000 with the clerk of the court.

Shortly after the appeal was filed in the eviction action, Patriot Bank assigned the operative note, mortgage, and assignment of leases and rents to Baotou. The court in the foreclosure action granted a motion to substitute Baotou for Patriot Bank as the party plaintiff in that action.

On February 7, 2023, Baotou filed a postjudgment motion to intervene in the eviction action for the limited purpose of asserting its rights with respect to the use and occupancy payments being deposited with the clerk of court and participating in any proceedings to determine the final distribution of those funds. Makeeva and Vladimir Lenskiy initially filed an objection to the motion to intervene in which they argued that such intervention was "both premature and presumptuous" and that Baotou "must wait for the entry of judgment in the foreclosure [action] and the resolution of the appeal in the [eviction] action."

They later withdrew their objection. The plaintiff also filed an objection to the motion to intervene arguing that Baotou was not a proper party to the eviction action, which is limited to the issue of possession, and, thus, should not be permitted to intervene.

In response to a May 12, 2023 caseflow request from Baotou seeking adjudication of its motion to intervene, the court, Cirello, J., issued an order that it would "consider the motion to intervene … when it considers the use and occupancy disbursement required by [§] 47a-35b." On July 25, 2023, this court issued a memorandum decision affirming the judgment of possession. Altavista Investments, LLC v. Makeeva, supra, 220 Conn. App. 901, 297 A.3d 285. The defendants did not file a petition for certification to appeal to our Supreme Court.

₁₈₂The court scheduled a hearing on Baotou’s motion to intervene for August 29, 2023. The court subsequently issued an order denying the motion to intervene. The court provided the following rationale for its ruling: "[Baotou] seeks to assert a money damages claim or a right to money held by the clerk in this [eviction] action for possession. [Baotou] is not the owner of the subject property nor able to terminate the possessory interest of the defendant[s] through eviction as authorized in a summary process action. Its claims for the money held by the clerk’s office are based on contract principles and privity against the plaintiff …. As [Baotou] does not seek a possessory interest in the subject property, it is not a proper party to this action." This appeal followed.⁶

Rather than turning directly to the merits of the appeal, Baotou, in its appellate brief, first addresses a threshold issue, namely, whether this appeal was taken from an appealable final judgment. See In re Santiago G., 325 Conn. 221, 228, 157 A.3d 60 (2017) ("[u]nless a specific right to appeal otherwise has been provided by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim" (internal quotation marks omitted)). We agree with Baotou that we have jurisdiction over the present appeal.

[1, 2] "The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § [61-1] …. The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases ₁₈₃at the trial court level. … The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear." (Internal quotation marks omitted.) Heyward v. Judicial Dep’t., 159 Conn. App. 794, 799–800, 124 A.3d 920 (2015).

[3] "An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. … That the present matter arises postjudgment does not affect that analysis: the final judgment rule still applies." (Citations omitted; internal quotation marks omitted.) Ricketts v. Ricketts, 203 Conn. App. 1, 4-5, 247 A.3d 223 (2021); id., at 5, 247 A.3d 223 (citing well established two part test of appealability set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983)).

[4–7] "General Statutes §§ 52-102⁷ and 52-107⁸ govern the intervention of nonparties to an action and provide for both permissive intervention and intervention as a matter of right. … Therefore, under the second ₁₈₄prong of Curcio, whether the trial court’s action on a motion to intervene is appealable depends on whether intervention is an absolute right or a matter within the trial court’s discretion. … [A]n unsuccessful applicant for intervention in the trial court does not have a final judgment from which to appeal unless he can make a colorable claim to intervention as a matter of right.⁹ If he does...