The defendants, Pelino S. DiLoreto and Joanne DiLoreto,
This appeal arises out of more than fifteen years of litigation commencing with a contract action filed by the plaintiff against Pelino S. DiLoreto on June 6, 1980. At the time the action was filed, the plaintiff obtained an ex parte prejudgment attachment of Pelino S. DiLoreto's interest in real property located at 136 Apple Hill, Wethersfield. The property was owned by Pelino S. DiLoreto and his wife, Joanne DiLoreto, at the time of the attachment in 1980. On February 27, 1984, Pelino S. DiLoreto quitclaimed his interest in the property at 136 Apple Hill to his wife, making Joanne DiLoreto the sole owner of the property.
On March 31, 1984, following trial, the court rendered judgment in favor of the plaintiff. The plaintiff took no action to preserve the interest secured by the prejudgment attachment. Pelino S. DiLoreto appealed, and, on September 22, 1987, this court reversed the judgment of the trial court on evidentiary grounds and remanded the case for a new trial. Mac's Car City, Inc. v. DiLoreto, 12 Conn.App. 468, 471-77, 531 A.2d 177 (1987).
On July 16, 1990, following a second trial, judgment was rendered in favor of the plaintiff. Pelino S. DiLoreto timely appealed to this court. On October 2, 1990, the plaintiff, for the first time, filed a certificate of judgment lien on the property at 136 Apple Hill. Thereafter, on May 28, 1991, this court affirmed the judgment of the trial court. Mac's Car City, Inc. v. DiLoreto, 24 Conn.App. 839, 591 A.2d 831, cert. denied, 220 Conn. 903, 593 A.2d 968
This appeal turns on the application of General Statutes § 52-328 (b), which provides: "No real estate that has been attached may be held subject to the attachment to respond to the judgment obtained in the suit, either against the debtor or any other creditor, unless the judgment creditor places a judgment lien on the real estate within four months after a final judgment." The defendants argue that the trial court's judgment of March 31, 1984, constituted a final judgment within the terms of § 52-328 (b) and, therefore, that the attachment was dissolved by operation of law when the plaintiff failed to file a judgment lien within four months of that date.
In granting summary judgment for the plaintiff, the trial court found that the prejudgment attachment filed on June 6, 1980, survived the September 22, 1987 reversal and remand order. The trial court reasoned that this court's reversal of the trial court's judgment acted only to restore the parties to the position in which they had been prior to trial without resolving the issues between them. The trial court concluded that this restoration of the status quo precluded a finding that the attachment had been dissolved at any point during the appeal.
The reasoning of the trial court is consistent with the general rule. When "on appeal a [trial court] judgment is set aside, its effect is destroyed, and the parties are in the same condition as before it was rendered. The
Prejudgment attachments, however, are outside the scope of this general rule. A plaintiff must perfect a prejudgment attachment by filing a judgment lien within four months of the trial court's final judgment or the plaintiff loses the benefit of the attachment. City National Bank v. Stoeckel, 103 Conn. 732, 738-39, 132 A. 20 (1926).
In Stoeckel, our Supreme Court explicitly held that if a judgment lien is not filed within the statutory period following a final judgment of the trial court, that judgment lien cannot be found to perfect a prejudgment attachment. Id., 738-39. Following Stoeckel, we hold in this case that the plaintiffs failure to file a certificate of judgment lien within four months of the trial court's final judgment of March 31, 1984, precluded the plaintiffs subsequent filing of a judgment lien to perfect the attachment. We note, however, that even though the judgment lien filed on October 2, 1990, does not perfect an interest secured by the attachment of June 6, 1980, the judgment lien is not necessarily invalid. The filing of an attachment is not a prerequisite to a valid judgment lien. From the time a certificate of judgment lien is recorded on the land records "the money judgment [is] a lien on the judgment debtor's interest in the real property described [in the judgment lien]." General Statutes § 52-380a (b). The defendants maintain that at the time of the recording of the certificate of judgment lien, Pelino S. DiLoreto, the judgment debtor, had no interest in the property described in the certificate. Only if that is in fact the case is the judgment lien invalid.
The judgment is reversed as to the determination of the validity of the prior attachment and the case is
In this opinion FREEDMAN, J., concurred.
LAVERY, J., dissenting. I respectfully dissent from the majority opinion. I agree with the trial court that a judgment lien filed after the second trial, which was necessitated by a reversal by this court of the judgment rendered following the first trial, related back to the attachment filed before the first trial. The defendants' position and that of the majority is that because the plaintiff did not file a judgment lien after the original judgment, which was appealed, the judgment lien filed after the second trial could not relate back to the attachment filed at the commencement of the action. The majority based its decision on City National Bank v. Stoeckel, 103 Conn. 732, 738-39, 132 A. 20 (1926). The Supreme Court has held with two exceptions, Mulholland v. Mulholland, 229 Conn. 643, 643 A.2d 246 (1994), and Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985), both involving public policy and the contempt power of the trial court, that the reversal of a trial court's judgment by an appellate tribunal renders that court's judgment void and without effect. Reilly v. State, 119 Conn. 217, 220-21, 175 A. 582 (1934); Brennan v. Berlin Iron Bridge Co., 73 Conn. 412, 415-16, 47 A. 668 (1900); Woodruff v. Bacon, 35 Conn. 97, 102 (1868); Allen v. Adams, 17 Conn. 67, 73 (1845). In Allen the Supreme Court stated: "Now, it is very clear, that, when that judgment was reversed, it ceased to be a judgment of any description, because the effect of such reversal was wholly to vacate and annul it. This is plain from the nature of the proceeding and the form of the entry of a judgment of reversal. Legally speaking, therefore, the judgment so reversed has now no existence. In legal contemplation, it is annihilated, and it is as if it had never been rendered." Allen v. Adams, supra, 73.
Practice Book § 4009 provides twenty days in which to file an appeal after the rendition of judgment. Practice Book § 4046 provides in pertinent part: "In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced...."
It may be argued that a proceeding contemplated by § 4046 is the foreclosure of the judgment lien, not the filing of the judgment lien. Common sense and simplicity
I would sustain the judgment of the trial court and find that once a judgment of money damages is reversed on appeal and a new judgment is rendered and sustained on appeal, the plaintiff has four months from the sustaining of the second judgment on appeal to file a judgment lien pursuant to General Statutes § 52-328 (b),
I respectfully dissent.