Christophersen v. Christophersen

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JOHN R. CHRISTOPHERSEN v. ERLING C.
CHRISTOPHERSEN ET AL.
(AC 35416)
Gruendel, Sheldon and Schaller, Js.
Argued March 10—officially released May 13, 2014

(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Complex Litigation Docket, Blawie,
J. [motions to stay]; Brazzel-Massaro, J. [motions to lift
stay, restore].)
Erling C. Christophersen, self-represented, the
appellant (named defendant).
Kevin A. Coles, with whom, on the brief, was Cather-
ine L. Creager, for the appellee (plaintiff).
Patrick M. Fahey, for the appellee (defendant Salis-
bury Bank and Trust Company).
Opinion

PER CURIAM. This appeal arose from and initially
concerned separate denials, in two companion cases
concerning the parties’ disputed interests in certain par-
cels of real property in Westport, of two interrelated
motions filed by the defendant, Erling C. Christo-
phersen, who had been sued in each action both as an
individual and as trustee of the Erling C. Christophersen
Revocable Trust (trust). In the first action (quiet title
action), which was commenced in June, 2008, the defen-
dant’s brother, the plaintiff, John R. Christophersen,
sued the defendant, as aforesaid, and several others,1
also in their capacities as individuals and as trustees
of particular named trusts, to quiet title to the two
parcels. In his complaint, John Christophersen alleged,
inter alia, that the defendant had divested him of his
title to, rights in, and use of the two parcels by transfer-
ring the parcels to himself, in his trusteeship capacity,
and recording a mortgage on the parcels, both to insu-
late himself in his individual capacity and to derive
money from the mortgage to which he would not other-
wise have been entitled. In the second action (foreclo-
sure action), which was commenced in July, 2010,
Salisbury Bank & Trust Company (bank), as holder of
the note and mortgage on the two parcels at issue in
the quiet title action, filed an action to foreclose the
mortgage against the defendant, both individually and
in his capacity as trustee, and others, including John
Christophersen.2 In its complaint, the bank alleged that
the defendant, as trustee, had defaulted on his obliga-
tion to pay the sum due to it, in principal and interest,
under the note and mortgage. Both John Christophersen
and the bank have alleged, in their respective actions
against the defendant, that the only capacity in which
the defendant has ever had or claimed any interest in
the two parcels was as a trustee, not as an individual.
The defendant, who has expressly admitted this allega-
tion on multiple occasions,3 does not dispute it in or
for the purposes of this appeal.4
On March 10, 2011, John Christophersen filed an
answer, special defenses and a counterclaim against
the bank in the foreclosure action. Thereafter, however,
on June 26, 2012, John Christophersen withdrew the
quiet title action as well as his counterclaim in the
foreclosure action. On that same date, the bank with-
drew the foreclosure action as to John Christophersen.
On July 27, 2012, the defendant filed an objection to
John Christophersen’s withdrawal of the quiet title
action and a motion to restore that action to the docket.
As support for his motion and objection, which he filed
in both his individual and his trusteeship capacities,
the defendant argued that John Christophersen was
prevented from withdrawing the quiet title action with-
out first seeking and obtaining leave of the court under
General Statutes § 52-805 because a hearing had already
been commenced before the court on an issue of fact.
In the alternative, the defendant argued that the court
should exercise its discretion to restore the action to
the docket in the interests of equity.6 John Christo-
phersen and the bank filed objections to the defendant’s
motion to restore the quiet title action to the docket.
On October 15, 2012, while the motion to restore the
quiet title action to the docket was still pending, the
defendant filed a motion in the foreclosure action to
stay all further proceedings in that action until the
motion to restore the quiet title action to the docket
was decided or, if the motion to restore was granted,
until the quiet title action was finally adjudicated. The
bank filed an objection to the defendant’s motion to
stay.
On December 17, 2012, a joint hearing was held before
the trial court, Brazzel-Massaro, J., on the defendant’s
motion to restore the quiet title action to the docket
and his motion to stay the foreclosure action until the
motion to restore was decided. Thereafter, by a written
memorandum of decision issued on February 1, 2013,
the court denied the motion to restore the quiet title
action to the docket, based upon findings that with-
drawal of the action was not barred by § 52-80 and
that no good reason had been advanced to warrant
exercising its discretion to restore the action to the
docket.7 On that same day, the court issued a short-
form judicial notice denying the motion to stay the
foreclosure action without explanation.8
On February 14, 2013, the defendant, individually and
in his trusteeship capacity, filed this appeal from the
denials of his motion to restore the quiet title action to
the docket and his motion to stay proceedings in the
foreclosure action. By order dated May 8, 2013, this
court dismissed for lack of a final judgment that portion
of the appeal which challenged the denial of the defen-
dant’s motion to stay the foreclosure action. By order
dated September 25, 2013, this court dismissed that
portion of this appeal in which the defendant, purport-
edly acting in his trusteeship capacity, sought to chal-
lenge the denial of his motion to restore the quiet title
action to the docket. The basis for the latter order
was that the defendant, who is not an attorney, cannot
lawfully represent the legal interests of the trust. In
light of these rulings, all that remains before us at this
time is the defendant’s claim, in his individual capacity
only, that the trial court erred in denying his motion to
restore the quiet title action to the docket.
The bank argues that the final portion of the defen-
dant’s appeal must also be dismissed because all of
the defendant’s claimed rights to and interests in the
property here at issue that could conceivably be adjudi-
cated in this quiet title action are admittedly claimed
by him in his trusteeship capacity only, based upon
the trust’s alleged legal title to the property, not in his
capacity as an individual. Therefore, the bank argues,
because the defendant cannot pursue a claim on behalf
of the trust in his individual capacity, he lacks standing
to bring this appeal and thus the appeal must be dis-
missed for lack of subject matter jurisdiction. We agree.
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he has, in an individual or representa-
tive capacity, some real interest in the cause of action,
or a legal or equitable right, title or interest in the subject
matter of the controversy. . . . This court has often
stated that the question of subject matter jurisdiction,
because it addresses the basic competency of the court,
can be raised by any of the parties, or by the court sua
sponte, at any time. . . . [T]he court has a duty to
dismiss, even on its own initiative, any appeal that it
lacks jurisdiction to hear. . . . Moreover, [t]he parties
cannot confer subject matter jurisdiction on the court,
either by waiver or by consent.’’ (Citations omitted;
internal quotation marks omitted.) Webster Bank v. Zak,
259 Conn. 766, 774, 792 A.2d 66 (2002).
Our Supreme Court has held that ‘‘[s]tanding is estab-
lished by showing that the party claiming it is authorized
by statute to bring suit or is classically aggrieved. . . .
The fundamental test for determining aggrievement
encompasses a well-settled twofold determination:
first, the party claiming aggrievement must successfully
demonstrate a specific, personal and legal interest in
[the subject matter of the challenged action], as distin-
guished from a general interest, such as is the concern
of all members of the community as a whole. Second,
the party claiming aggrievement must successfully
establish that this specific personal and legal interest
has been specially and injuriously affected by the [chal-
lenged action]. . . . Aggrievement is established if
there is a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected.’’ (Citation omitted; internal quota-
tion marks omitted.) AvalonBay Communities, Inc. v.
Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).
The defendant in the present case lacks standing to
appeal from the court’s denial of his motion to restore
the quiet title action to the docket because the putative
rights he asserts admittedly belong only to the trust,
which he represents as trustee, not to him personally.
The defendant as trustee is no longer a party to this
appeal, and this court has held that although a trust
beneficiary may be adversely affected by the acts of a
third person, no cause of action inures to the beneficiary
on that account. Naier v. Beckenstein, 131 Conn. App.
638, 646–47, 27 A.3d 104, cert. denied, 303 Conn. 910,
32 A.3d 963 (2011). The defendant, in his individual
capacity, has not claimed any ‘‘real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy’’; (internal quo-
tation marks omitted) Webster Bank v. Zak, supra, 259
Conn. 774; and thus we conclude that he lacks standing.
Accordingly, because the defendant, in his individual
capacity, lacks standing to pursue the rights of the trust
on appeal, the appeal must be dismissed for lack of
subject matter jurisdiction.
The appeal is dismissed.
1
The quiet title action also named as defendants the defendant’s sister,
Bonnie Christophersen, both individually and as successor trustee of a trust
under the Mildred B. Blount will, Elena B. Dreiske, individually and as
successor trustee of a trust under the Mildred B. Blount will, Salisbury Bank
and Trust Company, individually and as a trustee of the trust, and People’s
United Bank.
On March 24, 2009, the court granted the motions filed by each of the
defendants except People’s United Bank to stay the proceedings in the quiet
title action while a related New York proceeding was pending. On June 22,
2011, the court certified certain questions to the Surrogate’s Court in New
York. Thereafter, on February 29, 2012, the court granted the motion filed
by the Salisbury Bank and Trust Company to lift that stay. That order is
not at issue in this appeal.
2
The foreclosure action is denominated as Salisbury Bank & Trust Co.
v. Christophersen, Superior Court, judicial district of Stamford-Norwalk,
Complex Litigation Docket, Docket No. X08-CV-10-6005847-S. As discussed
herein, the defendant also purported to appeal from the court’s denial of
his motion to stay the foreclosure proceedings. This court dismissed that
appeal. The foreclosure action also named as defendants the Law Offices
of Gary Oberst, PC, Rhoda Rudnick, and Hinckley, Allen & Snyder, LLP.
They are not parties to this appeal.
3
The defendant confirmed in his own pleadings that his interest in the
disputed property is solely in his capacity as trustee. The defendant, in his
motion to restore the quiet title action to the docket, stated that, ‘‘Erling
Christophersen . . . [as] Trustee . . . holds title to the two lots.’’ More-
over, in his motion to temporarily stay the proceedings in the foreclosure
action, he explained that, ‘‘the subject land, owned by the defendant Erling
Christophersen, as trustee of the Erling Christophersen Trust, the land [the
bank] . . . seeks to foreclose, is the same subject land central to a quiet
title action.’’
4
The defendant notes in his brief before this court that ‘‘[t]he Erling
Christophersen Trust [is] the owner of the two lots in Westport, Con-
necticut.’’
5
General Statutes § 52-80 provides in relevant part: ‘‘The plaintiff may
withdraw any action so returned to and entered in the docket of any court,
before the commencement of a hearing on the merits thereof. After the
commencement of a hearing on an issue of fact in any such action, the
plaintiff may withdraw such action, or any other party thereto may withdraw
any cross complaint or counterclaim filed therein by him, only by leave of
court for cause shown.’’
6
Specifically, the defendant claims that the quiet title action rendered the
land at issue unmarketable and that the delay in that action has caused
damage to the trust in the form of carrying costs and legal fees.
7
The court denied the defendant’s motion to restore on two alternative
grounds: (1) John Christopersen did not need the court’s permission to
withdraw the case because there had yet to be a hearing on an issue of fact
as required under § 52-80, and, alternatively, (2) the failure to restore the
case to the docket would not result in any clear injustice to the defendant.
As to the second basis for its ruling, the court noted that although the
defendant claimed that he would be financially harmed by the withdrawal
of the action, he was, at the same time, pursuing a motion to dismiss which
sought to dispose of the action. The defendant claimed that the trust incurred
carrying costs and legal expenses associated with the property in question,
but the court held that such claim was neither relevant to the action nor
supported by the record, and the defendant did not file a counterclaim
which would have provided relief of that nature. Moreover, the court noted
that the defendant had not acquired a substantial right in the action or
received a favorable ruling that would be impacted by a withdrawal of the
action. Thus, the court concluded that the defendant was not prejudiced or
harmed by the withdrawal of the quiet title action.
8
Of course, no explanation was required, because the only relief sought
in the motion to stay was no longer necessary, as the motion to restore the
quiet title action to the docket had already been denied.