Opinion
In this fоreclosure action, the court rendered judgment of foreclosure by sale and, prior to either the sale or the rendering of a supplemental judgment, determined the parties’ priorities with respect to the subject property. The sole issue to be decided in this appeal is whether the trial court’s determinatiоn of priorities is an appealable final judgment. We conclude that it is not and, accordingly, dismiss the appeal.
The following facts and procedural history are relevant to this appeal. The defendant Ricky A. Momeau owns the subject property commonly known as 399 Main Street in Portland. The plaintiff, Michel Moran, commenced this action seeking to
The defendant Chase Home Finance, LLC (Chase), is the assignee of and successor in interest to a promissory note and mortgage deed in the original principal amount of $185,000, which was recorded on the Portland land records on August 22, 2003. 2 The defendant JPMorgan Chase Bank, N.A. (JPMorgan), holds a note secured by a secоnd mortgage in the original principal amount of $50,000, which was recorded on the land records on February 10, 2005. The plaintiffs position is that both the attachment and the judgment hen relate back to the July, 2003 “[njotice [r]e: [constructive [t]mst 1/2 [ojwnership,” which would give her claim priority over that of both Chase and JPMorgan.
On September 14, 2009, the court rеndered a judgment of foreclosure by sale and set the sale date for November 21, 2009. Thereafter, Chase filed a motion to determine the priorities of the parties’ interests in the subject property. In its motion, Chase represented that, due to the apparent lack of equity in the property to satisfy ah of the interеst sought to be foreclosed, adjudication of the priority issue prior to the sale was critical. The court heard oral argument on Chase’s motion. At the court’s request, Chase and the plaintiff each filed proposed findings of fact and proposed orders. On November 16, 2009, the court issued notice that it adopted the findings of fact and priorities based on Chase’s proposed orders. In so doing, the court found that the plaintiffs claim did not relate back to the July, 2003 “[n]otice [r]e: [c]onstructive [t]rust 1/2 [o]wnership” that she filed on the land records because there was no legal or statutory basis for such filing. Accordingly, Chase’s interest, recorded in August, 2003, was given first priority in right. The plaintiffs interest followed by virtue of the notice of attachment that she had recorded in May, 2004. JPMorgan’s claim, recorded in February, 2005, followed.
The plaintiff filed the present appeal contesting the court’s determination of the parties’ priorities and, in light of the pending appeal, the court cancelled the sale. Chase moved this court to dismiss the appeal on the ground that the trial court’s ordering of the parties’ priorities was not an appealable final judgment. We denied the motion to dismiss without prejudice and allowed the parties to address the final judgment issue in their briefs on the merits.
The plaintiff claims that the order detеrmining the priorities of the parties is an appealable final judgment because the order so concludes the rights of the parties that further proceedings cannot affect
We begin by setting forth our standard of review. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise plenary review].” (Internal quotаtion marks omitted.)
Brown & Brown, Inc.
v.
Blumenthal,
As our Supreme Court has explained: “To consider the [plaintiffs] claims, we must apply the law governing our appellate jurisdiction, which is statutory. . . . The legislature has enacted General Statutes § 52-263, 5 which limits the right of appeal to those appeals filed by aggrieved parties on issues of law from final judgments. Unless а 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. . . . Further, we have recognized that limiting appeals to final judgments serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings.” (Citations omitted; internal quotation marks omitted.) Id., 652-53.
“This court has determined [however] that certain interlocutory orders are to be treated as final judgments for purposes of appeal. To determine whether an order should be treated as such, we apply a two-pronged test: 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
The issue in the present case is whether the order from which the plaintiff appeals satisfies the second prong of
Curdo.
“[F]or an interlocutory ruling in either a criminal or a civil case to be immediately appealable under the second prong of
Curdo,
certain conditions must be present. There must be (1) a colorable claim, that is, one that is superficially well founded but that may ultimately be deemed invalid, (2) to a right that has both legal and practical value, (3) that is presently held by virtue of a statute or thе state or federal constitution, (4) that is not dependent on the exercise of judicial discretion and (5) that would be irretrievably lost, causing irreparable harm to the appellants without immediate review.” (Internal quotation marks omitted.)
Wells Fargo Bank of Minnesota, N.A.
v.
Jones,
The plaintiff claims that her right to first priority with respect to the subject property is in jeopardy. A discussion of judgments in the foreclosure by sale process is helpful here. “The purpose of the judicial sale in a foreclosure action is to convert the property into money and, following the sale, a determination of the rights of the parties in the funds is made, and the money received from the sale takes the place of the property.”
National City Mortgage Co.
v.
Stoecker,
As to the first determination, “a judgment of foreclosure constitutes an appealable
As to the second appealable determination, the court’s approval of a sale serves as “the final determination by the court that the mortgaged property was sold at a fair price . . . .” (Internal quotation marks omitted.)
National City Mortgage Co.
v.
Stoecker,
supra,
A third appealable determinаtion occurs in the foreclosure by sale process when the court renders a supplemental judgment. “Pursuant to General Statutes § 49-
27,
8
entitlement to proceeds of the sale, and the amount of such entitlements, is to be determined by the court in a supplemental proceeding after the sale has been ratified by the сourt.”
Voluntown
v.
Rytman,
In the present case, the court rendered
prior to the sale
a decision determining the parties’ priorities. Because no sale has taken place, the court’s ordering of priorities is interlocutory until a sale is approved and the court renders a supplemental judgment. The plaintiff argues that this order constitutes an appealable
Moreover, a number of conditions must be present for an interlocutory order to be apрealable under the second prong of
Curdo,
including the requirement that the right the plaintiff seeks to vindicate is presently held by her and is not dependent on the exercise of judicial discretion. A judicial sale converts the subject property into money. The right that the plaintiff seeks to vindicate in this appeal is her claim to first priority to the proceeds from the sale of the property. This case presents an unusual situation in which the trial court ordered the parties’ priorities after rendering a judgment of foreclosure by sale but prior to any sale occurring. In view of the court’s broad equitable powers in a foreclosure action;
Reynolds
v.
Ramos,
Because she has not had the opportunity to obtain a ruling of this court, her claim to first priority is subject to the exercise of the trial court’s discretion. For the foregoing reasons, the interlocutory order determining the priority of the parties is not appealable under the second prong of Curdo. Accordingly, the lack of a final judgment requires us to dismiss the appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
Notes
This court affirmed the judgment and award of damages in
Moran
v.
Morneau,
A promissory note and mortgage deed in favor of Webster Bank in the principal amount of $185,000 was recorded on August 22,2003. This mortgage was later assigned to Chase, which assignment was recorded on December 20, 2006.
The plaintiffs remaining claims on appeal go to the merits of whether her judgment lien taires first priority in right. Because we conclude that the plaintiff has not appealed from a final judgment, we do not address these claims.
Citing Chase Home Finance, LLC v. Morneau, Superior Court, judicial district of Middlesex, Docket No. CV-07-5002946-S, the plaintiff maintains that Chase has commenced a separate action in which it seeks to foreclose on its interest in the subject property that is pending in the Superior Court.
General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”
By way of contrast, the strict foreclosure process typically presents only one judgment or ruling that is properly appealable, the judgment of strict foreclosure, because the effect of strict foreclosure is to vest title to the real property absolutely in the mortgagee, and to do so without any sale of the property. D. Caron & G. Milne, Connecticut Foreclosures, supra, § 17.04, p. 391;
National City Mortgage Co.
v.
Stoecker,
supra,
The plaintiff did not file a timely appeal from the judgment of foreclosure by sale. She appeals from the postjudgment order in which the court determined the parties’ priorities. Nonetheless, the plaintiff maintains that it would “appear” that she has appealed from a final judgment because the court determined the method of foreclosure and the amount of debt. This argument misses the point. The fact that an appealable final judgment has occurred in a case does not, by itself, render a subsequent interlocutory order immediately appealable.
General Statutes § 49-27 provides in relevant part: “The proceeds of each such sale shall be brought into court, there to be applied if the sale is ratified, in accordance with the provisions of a supplemental judgment then to be rendered in the cause, specifying the parties who are entitled to the same and the amount to which each is entitled. . . .”