Altavista Investments, LLC v. Makeeva, 226 Conn. App. 175 (2024)

ALTAVISTA INVESTMENTS, LLC v.
                          LEYLA MAKEEVA ET AL.
                                (AC 46885)
                               Elgo, Seeley and Westbrook, Js.
                                           Syllabus
         B Co., which held a note that was secured by a mortgage on the plaintiff’s
            property, filed a motion to intervene in postjudgment summary process
            eviction proceedings for the limited purpose of asserting its rights with
            respect to use and occupancy payments made by the defendants and
            participating in any proceedings to determine the final distribution of
            those funds. The trial court held a hearing in accordance with the
            applicable statute (§ 47a-35b), and denied B Co.’s motion to intervene,
            determining that B Co. was not a proper party to the eviction action
            because it did not have a possessory interest in the real property. On
            B Co.’s appeal to this court, held that the trial court improperly failed
            to permit B Co. to intervene in the postjudgment proceedings as a matter
            of right, and, accordingly, this court reversed the trial court’s judgment
            and remanded the case with direction to grant B Co.’s motion to inter-
            vene and for further proceedings in accordance with § 47a-35b: pursuant
            to the four factor test for intervention as of right, which the trial court
            improperly failed to consider, this court had jurisdiction over the appeal
            because B Co. demonstrated a colorable claim of intervention as of
            right, such that the denial of its motion for intervention was a final
            judgment for purposes of appeal; moreover, the trial court improperly
            denied the motion to intervene on its merits because the motion was
            clearly timely, as it was filed with the trial court during the pendency
            of the appeal from the judgment of possession for the express purpose
            of vindicating rights under § 47a-35b, pursuant to which the trial court
            was not required to hold a hearing until the final disposition of the
            appeal, B Co. had a direct right to the subject matter of the postjudgment
            litigation, as neither the plaintiff nor the defendants contested B Co.’s
            assertion that it had a contractual right to the use and occupancy pay-
            ments, that right was a substantial one, as reflected in the amount of
            the accumulated use and occupancy payments at issue, B Co.’s interest
            would likely be impaired by any disposition in which it was not permitted
            to participate because § 47a-35b expressly provides that the court’s
            distribution of the accumulated use and occupancy payments is to be
            conclusive, and B Co.’s interest in the use and occupancy payments
            was clearly adverse to the interests of the plaintiff and the defendants,
            and, accordingly, the existing parties to the litigation would not ade-
            quately protect B Co.’s interest in obtaining the use and occupancy
            payments; furthermore, because the § 47a-35b hearing was separate
            and distinct from the underlying eviction action, whether B Co. had a
            possessory interest in the property that was subject to the eviction
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