U.S. Bank National Assn. v. Crawford ( 2019 )

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U.S. BANK NATIONAL ASSOCIATION v. CRAWFORD—DISSENT
McDONALD, J., with whom MULLINS and KAHN,
Js., join, dissenting. I disagree with the majority that
the trial court’s decision denying the motion for statu-
tory fees and expenses, without prejudice to refiling
that motion at a later date, is an immediately appealable
ruling under the second prong of State v. Curcio, 191
Conn. 27, 31, 463 A.2d 566 (1983). The trial court’s
determination that the automatic stay provision of the
federal Bankruptcy Code, 11 U.S.C. § 362 (a) (1) (2012),
applies so as to delay satisfaction of such a request is
not one that ‘‘so concludes the rights of the parties
that further proceedings cannot affect them.’’1 State v.
Curcio, supra, 31. In concluding otherwise, the majority
substitutes a policy analysis for the limited exceptions
to the final judgment rule. This approach exacerbates
the already murky state of our final judgment jurispru-
dence, a consequence that is not only unfortunate but
unnecessary given other procedural avenues available
to address this matter. For the reasons that follow, I
would dismiss the writ of error for lack of a final
judgment.
This court has explained that the exception to the
final judgment rule on which the majority relies
‘‘requires the parties seeking to appeal to establish that
the trial court’s order threatens the preservation of a
right already secured to them and that that right will be
irretrievably lost and the [parties] irreparably harmed
unless they may immediately appeal.’’ (Emphasis
added; internal quotation marks omitted.) Blakely v.
Danbury Hospital, 323 Conn. 741, 746, 150 A.3d 1109
(2016). Under this ‘‘narrow’’ exception; (internal quota-
tion marks omitted) id., 752; an interlocutory order will
be deemed final for purposes of appeal ‘‘if it involves
a claimed right the legal and practical value of which
would be destroyed if it were not vindicated before
trial.’’ (Emphasis added; internal quotation marks omit-
ted.) State v. Bacon Construction Co., 300 Conn. 476,
481–82, 15 A.3d 147 (2011). ‘‘[E]ven when an order
impinges on an existing right, if that right is subject to
vindication after trial, the order is not appealable under
the second prong of Curcio.’’ Hartford Accident &
Indemnity Co. v. Ace American Reinsurance Co., 279
Conn. 220, 231, 901 A.2d 1164 (2006).
Under these parameters, the first step is to identify
the existing right at issue. In the present case, that
right is prescribed by statute. General Statutes § 49-
25 provides in relevant part: ‘‘[I]f for any reason the
[foreclosure by] sale does not take place, the expense
of the sale and appraisal or appraisals shall be paid by
the plaintiff and be taxed with the costs of the case.
. . .’’ Thus, the right at issue is simply the right of the
plaintiff in error, Douglas M. Evans, as the committee
for sale, to be paid such expenses and costs.
The next step is to determine whether that right is
irretrievably lost and the plaintiff in error is irreparably
harmed due to the trial court’s decision denying his
request for payment of such fees and costs, without
prejudice to renewing that request once the automatic
bankruptcy stay is lifted. The answer to that question
is ‘‘no.’’ The plaintiff in error’s right to recover fees and
expenses remains intact, undiminished in any respect.
Compare Perry v. Perry, 312 Conn. 600, 620, 95 A.3d
500 (2014) (trial court’s order granting only portion of
fees that children’s attorney owed to another attorney
who represented her in related postjudgment proceed-
ing substantially impaired her right to her own fees and
she could not vindicate that right in separate proceeding
should other attorney sue to recover his fees), and Hart-
ford Accident & Indemnity Co. v. Ace American Rein-
surance Co., supra, 279 Conn. 232–34 (order denying
plaintiffs’ motion for prepleading security under statute
prohibiting unauthorized insurer without assets in Con-
necticut from defending action until it posts security
would cause irreparable harm if plaintiffs cannot appeal
until conclusion of trial because court will be unable
to restore plaintiffs’ right either to have defendants post
security or to obtain default judgment against defen-
dants if they fail to do so), with Incardona v. Roer, 309
Conn. 754, 756–57, 763, 73 A.3d 686 (2013) (trial court’s
order imposing monetary sanctions on plaintiffs for
failure to comply with discovery order did not so con-
clude rights of parties that further proceedings could
not affect them when court indicated that it was pre-
pared to modify order if later developments warranted
such action), and New England Savings Bank v. Nico-
tra, 230 Conn. 136, 139–40, 644 A.2d 909 (1994) (trial
court’s order appointing receiver of rents in foreclosure
action did not so conclude rights of parties because,
‘‘[a]lthough a receivership takes designated funds out
of the control of the mortgagor, it does not vest their
control in the foreclosing mortgagee, who has no claim
upon the income and profit in [the receiver’s] hands as
such; since the funds are legally in the possession of
the court subject to whatever disposition it may order’’
[internal quotation marks omitted]).
The mere delay in the plaintiff in error’s receipt of
his fees and costs does not destroy the legal and practi-
cal value of the right to recover them. It may impinge on
the existing right, but that right is subject to vindication
once the stay is lifted. See generally Rostad v. Hirsch,
128 Conn. App. 119, 125, 15 A.3d 1176 (2011) (‘‘to decide
whether an interlocutory ruling has caused an appellant
to suffer irreparable harm, it is relevant to inquire
whether the trial court, at the time of the final judgment,
will be able to provide remedial relief’’). If a delay in
obtaining relief was, in and of itself, an injury sufficient
to authorize an interlocutory appeal, we would not have
held, for example, that ‘‘the denial of a statute of limita-
tions defense is not itself an appealable final judgment
. . . .’’ Santorso v. Bristol Hospital, 308 Conn. 338, 354
n.9, 63 A.3d 940 (2013); accord Blakely v. Danbury
Hospital, supra, 323 Conn. 744, 753 (denial of motion
for summary judgment on ground that jurisdictional
time limitation had lapsed did not satisfy second prong
of Curcio). Instead, vindication of the defendant’s right
not to have to defend against a stale claim must await
the close of trial. We strictly adhere to the final judgment
rule even though the defendant may incur significant
litigation expenses defending against the merits of a
claim that ultimately is deemed time barred.
The majority’s decision that the second prong of Cur-
cio is satisfied characterizes the right sought to be vindi-
cated as the plaintiff in error’s ‘‘entitle[ment] to recover
fees and costs immediately upon filing a proper and
timely motion for fees.’’ (Emphasis in original.) The
statute giving rise to the plaintiff in error’s right, how-
ever, includes no such temporal requirement, and it is
not the proper function of this court to engraft that
language.2 See State v. Obas, 320 Conn. 426, 436, 130
A.3d 252 (2016) (noting that, ‘‘[i]n the absence of any
indication of the legislature’s intent concerning this
issue, we cannot engraft language onto the statute for
[i]t is not the function of the courts to enhance or
supplement a statute containing clearly expressed lan-
guage’’ [internal quotation marks omitted]). The major-
ity points to no authority that entitles the plaintiff in
error to interest on those fees and costs during the
intervening period between the filing of the motion and
the court’s order granting that motion, or until payment
is made, either of which might imply the right to immedi-
ate payment.3
On the basis of its characterization of the right as
one to immediate payment, the majority concludes that,
in the absence of an interlocutory appeal, there will be
irreparable harm to that right because, if the plaintiff
in error cannot seek review of the order until the auto-
matic stay is terminated and the trial court rules on the
merits of his motion, that right will be ‘‘forever lost
. . . .’’4 The fact that the plaintiff in error will have to
wait to vindicate his right to receive fees is precisely
what is required. This is so because future develop-
ments in the trial court, namely, the receipt of his fees,
will render the interlocutory appeal unnecessary.
In reality, the majority does not apply the second
prong of Curcio but instead creates a third, public pol-
icy prong. That approach raises three problems. First,
the legislature could have authorized immediate review
of a writ of error implicating a matter of public interest
in the absence of a final judgment, as it has for the
parties to the case, but it did not. See General Statutes
§ 52-265a (a) (‘‘any party to an action who is aggrieved
by an order or decision of the Superior Court in an
action which involves a matter of substantial public
interest and in which delay may work a substantial
injustice, may appeal under this section from the order
or decision to the Supreme Court’’).
Second, this court has emphatically rejected the
majority’s approach: ‘‘To be clear, policy concerns are
not a factor under either prong of Curcio, and, accord-
ingly, it would be inappropriate to rely on policy alone
to justify allowing an appeal under Curcio.’’ Woodbury
Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn.
750, 762 n.10, 48 A.3d 16 (2012). Although this court
has previously cited public policy reasons to bolster
our conclusion that immediate review is warranted
under the first prong of Curcio, we have made clear
that those reasons did not displace the requirement of
satisfying Curcio. See id., 773 (‘‘The discovery order in
the present case constitutes a final judgment because
it terminated a separate and distinct proceeding and
thus satisfied the first prong of Curcio. Additionally, it
implicates important policy considerations that militate
against requiring an officer of the court who also is not
a party to the underlying action to be held in contempt
of court in order to be able to seek appellate review.’’);
see also id., 762 (‘‘[f]or these reasons alone, then, the
discovery order in the present case is a final judgment
because it satisfies the first prong of Curcio, just as
the discovery order in Abreu [v. Leone, 291 Conn. 332,
968 A.2d 385 (2009)] constituted a final judgment
because it arose out of a separate proceeding brought
by a nonparty’’). Public policy has been considered in
our analysis under the second prong of Curcio only
insofar as such policy illuminated the contours of a
common-law right claimed to be harmed. See, e.g.,
Chadha v. Charlotte Hungerford Hospital, 272 Conn.
776, 785–87, 865 A.2d 1163 (2005) (explaining why pur-
pose of absolute immunity under common law, pro-
tecting against threat of suit, compels conclusion that
denial of summary judgment on ground of such immu-
nity gives rise to immediately appealable final judgment
due to irreparable harm). The majority’s suggestion that
this court’s decision in Melia v. Hartford Fire Ins. Co.,
202 Conn. 252, 520 A.2d 605 (1987), sanctioned such
an approach misconstrues that case. See id., 255–56
(explaining that, although in some instances federal
courts of appeals have entertained appeals from discov-
ery orders presenting issues of claimed violations of
certain privileges, ‘‘[t]his court has no discretionary
jurisdiction comparable to that given the federal courts
by [28 U.S.C.] § 1292 [b] to entertain appeals from inter-
locutory orders, except as provided [for public interest
appeals] in . . . § 52-265a’’). Although our final judg-
ment jurisprudence may not be a model of clarity, we
should not muddy those waters further to accommodate
the present case.
The only unusual feature of the present case is that
the legal issue—whether the automatic stay provision
of the Bankruptcy Code applies to § 49-25—could avoid
review in every case because a reviewing court would
never be able to afford any practical relief once the
stay has been lifted. However, if the legal issue were
rendered moot once the stay is lifted, for all of the
reasons identified by the majority, such a circumstance
would appear to satisfy the capable of repetition, yet
evading review exception to mootness. See Wendy V.
v. Santiago, 319 Conn. 540, 545–46, 125 A.3d 983 (2015)
(setting forth parameters of exception). Insofar as the
majority contends that the issue might not be review-
able because the plaintiff in error would no longer be
aggrieved by the time judgment is final, this result
proves my point.5
This brings me to the third problem with the majori-
ty’s approach. There is no reason to expand and muddy
our final judgment jurisprudence in this case because
there were other avenues of relief available to the plain-
tiff in error. Counsel for the plaintiff in error was aware
of our Appellate Court’s decision in Equity One, Inc.
v. Shivers, 150 Conn. App. 745, 93 A.3d 1167 (2014),
on which the trial court relied to conclude that the
automatic stay applies to a motion for fees and expenses
by a committee for sale. As his firm had done in a
similar case, counsel could have sought a declaratory
judgment from the bankruptcy court that the stay does
not apply to the fees and costs in the present case. See
In re Tasillo, United States Bankruptcy Court, Docket
No. 14-21683 (ASD) (D. Conn. January 6, 2015) (declara-
tory judgment in favor of committee of sale); CT Tax
Liens 2, LLC v. Tasillo, Superior Court, judicial district
of Hartford, Docket No. CV-XX-XXXXXXX-S (January 29,
2015) (granting motion for fees before stay was lifted
in light of declaratory judgment). If the plaintiff in error
wanted to have Shivers overruled so as to avoid such
proceedings in other cases, he could have filed an action
for a declaratory judgment in state court to obtain such
relief.6 The time and expense of pursuing such avenues
surely are not greater than if pursuing an appeal.
I concede that there is ample reason to question the
vitality of Shivers, as it is in conflict with the conclu-
sions reached by several federal bankruptcy courts,
whose primary charge is to interpret and apply federal
bankruptcy law. See In re Tasillo, supra, United States
Bankruptcy Court, Docket No. 14-21683; In re VMC
Real Estate, LLC, Docket No. 11-20452 (ASD), 2012
WL 836724, *2 (Bankr. D. Conn. March 9, 2012); In re
Rubenstein, 105 B.R. 198, 204 (Bankr. D. Conn. 1989);
see also In re Danise, 112 B.R. 492, 494 and n.2 (Bankr.
D. Conn. 1990). But see In re Hooker, United States
Bankruptcy Court, Docket No. 18-20504 (JJT) (D. Conn.
June 27, 2018) (concluding that stay applies but relief
may be afforded). Given such tension, I share the major-
ity’s concern about the viability of Shivers going for-
ward. However, in the absence of jurisdiction over the
writ, this court is compelled to dismiss the writ of error
without reaching its merits.
Accordingly, I respectfully dissent.
1
‘‘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.’’ State v. Curcio, supra, 191 Conn.
31. Only the second prong of Curcio is at issue in the present case.
2
Section 49-25 obviously does not specify a time limitation in which to
make payment. Even if we could infer that payment must be made within
a ‘‘reasonable’’ period of time in the absence of a specified period, the
question would remain whether the typical duration of an automatic bank-
ruptcy stay; see footnote 4 of this dissenting opinion; would constitute an
unreasonable delay.
3
Of course, if the plaintiff in error were entitled to interest, then he clearly
could not show that the delay in payment while the stay is pending would
cause irreparable harm.
4
Ironically, but for the filing of the present writ of error, the plaintiff in
error would have received his fees and costs long before this court could
have issued its decision on this writ. The defendant in error, the named
defendant in the underlying foreclosure action, Jacquelyn N. Crawford, filed
for chapter 13 bankruptcy protection on February 8, 2017, and the bank-
ruptcy stay was lifted less than six months later, on July 28, 2017. The
committee deed was approved by the trial court on September 26, 2017,
and an amended motion for supplemental judgment was filed on November
15, 2017, at which time the defendant in error, the plaintiff in the underlying
foreclosure action, U.S. Bank National Association, as Trustee, requested
that the committee’s fees and costs of $5839.39 be paid. The trial court
denied that motion because of the pendency of this writ of error, and ordered
no payment until the conclusion of this appeal. Although the automatic
bankruptcy stay lasted less than six months, a period of five months lapsed
between the time that the trial court denied the plaintiff in error’s motion
for the fees and the date on which he filed his appellate brief in this court.
5
There is case law from this court suggesting that, even in the absence
of aggrievement, we could exercise jurisdiction if the party seeking review
is in a class whose interests are capable of repetition, yet evading review.
See Kulmacz v. Kulmacz, 177 Conn. 410, 412–13, 418 A.2d 76 (1979) (‘‘A
requisite element of appealability is that the party claiming error in the
decision of the trial court be aggrieved . . . for if a party attempting to
appeal can by no possibility suffer injury by the judgment, he should not
be permitted to appeal. . . . There are few exceptions to this basic tenet
of appellate practice, and those anomalies involve either representatives of
parties . . . or persons whose interest, albeit terminated, is capable of
repetition, yet evading review. . . . The plaintiff . . . is not an aggrieved
person whose interests will be adversely affected by an unfavorable judg-
ment. . . . There is nothing in the record to show that the plaintiff has
appeared for other interests in a representative capacity; nor is she in a class
whose interests have been described as capable of repetition.’’ [Citations
omitted; internal quotation marks omitted.]); see also Loisel v. Rowe, 233
Conn. 370, 378, 660 A.2d 323 (1995) (explaining that, in context of capable
of repetition, yet evading review requirement, ‘‘[t]he doctrine of mootness
is rooted in the same policy interests as the doctrine of standing, namely,
to assure the vigorous presentation of arguments concerning the matter at
issue’’). I express no opinion on this matter.
6
I am not suggesting that a trial court would have authority to overrule
Shivers in a declaratory judgment action or that such an action properly
would be pursued by the plaintiff in error after his request for fees had
been denied without prejudice. I am simply suggesting that, knowing that
the trial court would have been bound by Shivers, the plaintiff in error
could have sought a declaration that Shivers conflicts with federal law,
before filing a request for fees that inevitably would be denied, and that
there would have been no jurisdictional impediment to appellate review of
that decision, as there is under the present procedural posture. See Bysie-
wicz v. DiNardo, 298 Conn. 748, 756, 6 A.3d 726 (2010) (A declaratory
judgment action ‘‘requires that the plaintiff be in danger of a loss or of
uncertainty as to [his] rights or other jural relations and that there be a bona
fide and substantial question or issue in dispute or substantial uncertainty
of legal relations . . . . [D]eclaratory relief is a mere procedural device by
which various types of substantive claims may be vindicated.’’ [Internal
quotation marks omitted.]).
Although we have not yet had occasion to address this question, it appears
to me that the plaintiff in error also could have asked the trial court to
certify the question to this court of whether Shivers was properly decided.
See General Statutes § 52-235 (a) (‘‘[t]he Superior Court, or any judge of
the court, with the consent of all parties of record, may reserve questions
of law for the advice of the Supreme Court or Appellate Court in all cases
in which an appeal could lawfully have been taken to said court had judgment
been rendered therein’’). Although this statute limits such reservations to
‘‘cases in which an appeal could lawfully have been taken to said court had
judgment been rendered therein’’; (emphasis added) General Statutes § 52-
235 (a); it appears that this limitation is simply intended to preclude reserva-
tions in cases in which review is not available after final judgment. In
Redding Life Care, LLC v. Redding, 331 Conn. 711, 726, 207 A.3d 493 (2019),
this court recently concluded that General Statutes § 51-197f, which governs
petitions for certification to appeal after a final determination of ‘‘any appeal’’
from the Appellate Court, included a writ of error.