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

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U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
v. JACQUELYN N. CRAWFORD ET AL.
(SC 19903)
Palmer, McDonald, Robinson, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiff in error, E, who had been appointed by the trial court as the
committee to conduct a foreclosure sale in the underlying foreclosure
action brought by the defendant in error bank, U Co., against the defen-
dant in error property owner, C, filed a writ of error, claiming, inter
alia, that the trial court improperly denied his motion to recover fees
and expenses from U Co. U Co. had sought to foreclose a mortgage
on certain of C’s real property. The trial court rendered judgment of
foreclosure by sale, and U Co. was the successful bidder. Before the
sale could be completed, C filed a bankruptcy petition under chapter
13 of the United States Bankruptcy Code in the United States Bankruptcy
Court, which automatically stayed the foreclosure proceedings pursuant
to the automatic stay provision (11 U.S.C. § 362 [a] [2012]) of the code.
Thereafter, pursuant to statute (§ 49-25), E filed a motion seeking to
recover from U Co. the fees and expenses that he had incurred in
preparing for the sale. The trial court denied E’s motion for fees and
expenses on the ground that, pursuant to the Appellate Court’s decision
in Equity One, Inc. v. Shivers (150 Conn. App. 745), the motion automati-
cally was stayed by 11 U.S.C. § 362 (a) and the court was barred from
acting on the motion during the duration of the stay. In connection with
his writ of error, E claimed, inter alia, that this court should overrule
Shivers because state courts lack jurisdiction to extend the automatic
stay provision to motions for fees and expenses filed by committees
for sale seeking expenses from nondebtor plaintiffs in foreclosure
actions. Held:
1. This court could review E’s writ of error because, although the trial court’s
order denying E’s motion for fees and expenses was an interlocutory
order, it constituted an appealable final judgment under the second
prong of the test for determining the appealability of interlocutory orders
set forth in State v. Curcio (191 Conn. 27), as the denial of the motion
so substantially resolved the rights of the parties that further proceedings
could not affect them: E, who was not a party to the underlying foreclo-
sure action, had an undisputed right to recover the fees and expenses
that he had incurred in preparing for the sale immediately upon the
filing of a proper and timely motion, that right was separate from and
collateral to the rights being asserted in the foreclosure action, and
there was no possibility that his claim could be raised on direct appeal
from the trial court’s judgment in the foreclosure action without first
being rendered moot; moreover, the claim E asserted in his writ of error,
which already has arisen on numerous occasions in the courts of this
state, involved a matter of public importance, as committees for sale,
whice are appointed by and act as representatives of the court, may be
reluctant to accept appointment if they are unable to promptly recover
the fees and expenses they incur in that capacity, and allowing review
of the trial court’s ruling in the present case would entirely dispose of
the issue presented, would not open the floodgates to additional writs
of error raising the same issue, and would avoid the bizarre result of
allowing Shivers, which is inconsistent with the majority of federal
bankruptcy decisions, to continue to bind this state’s trial courts.
(Three justices dissenting in one opinion)
2. Although E’s writ of error was rendered moot because the automatic
stay terminated when, during the pendency of the writ of error, C’s
bankruptcy petition was dismissed, E’s claim was reviewable under the
capable of repetition, yet evading review exception to the mootness
doctrine; because of the limited duration of chapter 13 bankruptcy
proceedings, which, on average in the federal bankruptcy court in Con-
necticut, span approximately ten months, there existed a strong likeli-
hood that the majority of cases challenging a denial of a motion for
committee fees and expenses would be moot before appellate litigation
could be completed, the issue presented by E’s writ of error, which
already has arisen on numerous occasions in the courts of this state,
was likely to recur, and resolution of that issue was of public importance.
3. This court having determined that a state court lacks subject matter
jurisdiction to extend the automatic bankruptcy stay to proceedings
against nondebtors, it overruled the Appellate Court’s decision in Shiv-
ers, and, because the trial court relied exclusively on Shivers in denying
E’s motion for fees and expenses, this court granted E’s writ of error
and remanded the case to the trial court with direction to vacate the
order denying E’s motion and to consider the motion on the merits;
Connecticut and federal case law indicated that the stay provision set
forth in 11 U.S.C. § 362 (a), which operates to benefit the debtor and
bankruptcy trustee only, does not apply automatically to claims against
nondebtors, and that, although state courts have jurisdiction to interpret
the provisions of the bankruptcy code and orders of the bankruptcy
court to determine whether, under their plain terms, the automatic stay
provision applies in a state court proceeding, the bankruptcy court has
exclusive jurisdiction to modify a stay by extending it to proceedings
to which it does not automatically apply or by barring it in proceedings
to which it does automatically apply, and, therefore, a state court lacks
jurisdiction to extend the automatic stay provision to the motion of a
committee for sale to recover fees and expenses from a nondebtor.
Submitted on briefs April 2, 2018—officially released November 26, 2019
Procedural History
Writ of error from the decision of the Superior Court
in the judicial district of Hartford, Robaina, J., denying
the motion to award interim foreclosure committee fees
and expenses filed by the plaintiff in error. Writ of error
granted; remanded with direction.
C. Donald Neville and Gregory W. Piecuch filed a
brief for the plaintiff in error (Douglas M. Evans).
Robert A. White, Proloy K. Das, Sarah Gruber, Irve
Goldman, Thomas J. Sansone and Charles A. Maglieri
filed a brief for the Connecticut Bar Association as
amicus curiae.
Opinion
ROBINSON, J. The primary issue raised by this writ
of error is whether the automatic stay provision of
the federal bankruptcy code, 11 U.S.C. § 362 (a) (1),1
precludes a committee for sale from recovering fees
and expenses from a plaintiff in a foreclosure action
that has been stayed because the defendant has filed
for bankruptcy. The plaintiff, the U.S. Bank National
Association, brought the underlying foreclosure action
against the defendant Jacquelyn N. Crawford.2 The trial
court ultimately ordered a foreclosure by sale and
appointed the plaintiff in error, Douglas M. Evans, as the
committee for sale. Before the sale could be completed,
however, Crawford declared bankruptcy, and the fore-
closure action was stayed pursuant to 11 U.S.C. § 362
(a) (1). Thereafter, the plaintiff in error filed a motion
pursuant to General Statutes § 49-25,3 seeking to
recover, from the bank, the fees and expenses that he
had incurred in preparing for the sale. Relying on an
Appellate Court decision; see Equity One, Inc. v. Shiv-
ers, 150 Conn. App. 745, 755, 93 A.3d 1167 (2014) (when
defendant in foreclosure action has declared bank-
ruptcy, automatic stay provision applies to motions for
fees and expenses by committee for sale against non-
debtor plaintiff); the trial court concluded that the plain-
tiff in error’s motion for fees and expenses was stayed
and issued an order denying the motion on that ground.
This writ of error was then filed pursuant to General
Statutes § 51-199 (b) (10)4 and Practice Book § 72-1.5
Specifically, the plaintiff in error contends that this
court should overrule Shivers because the Appellate
Court lacked subject matter jurisdiction to extend the
automatic stay provision to motions to recover fees
and expenses from nondebtor plaintiffs in foreclosure
actions. In the alternative, the plaintiff in error contends
that we should overrule Shivers on the merits because
it is in conflict with the decisions of federal bankruptcy
courts addressing this issue. We conclude that state
courts lack jurisdiction to extend the automatic stay
provision to proceedings against nondebtors and that
Shivers must be overruled on that ground. Accordingly,
we grant the writ of error and remand the case to the
trial court with direction to vacate the order denying
the plaintiff in error’s motion for fees and expenses and
to entertain the motion.
The record reveals the following undisputed facts
and procedural history. Crawford executed a promis-
sory note in favor of the bank that was secured by a
mortgage on property located at 36-38 Baltic Street in
the city of Hartford. After Crawford defaulted on the
note, the bank commenced a foreclosure action against
her. The trial court ultimately rendered a judgment of
foreclosure by sale and appointed the plaintiff in error
as the committee for sale. The sale was scheduled for
February 4, 2017, and the bank was the successful bid-
der. Shortly thereafter, the plaintiff in error filed his
report, in which he listed expenses totaling $2419.29.
He also submitted an affidavit in which he averred that
the legal fees incurred in connection with the sale were
expected to be $3420.
Before the sale could be completed, however, Craw-
ford filed for bankruptcy pursuant to chapter 13 of the
United States Bankruptcy Code. Because the automatic
stay provision applied to the foreclosure action, the
sale of the property could not be completed. Accord-
ingly, the plaintiff in error filed a motion to recover his
fees and expenses from the bank pursuant to § 49-25.
See footnote 3 of this opinion. The plaintiff in error
contended in the motion that the trial court should not
follow the Appellate Court’s decision in Equity One,
Inc. v. Shivers, supra, 150 Conn. App. 755, holding that
the bankruptcy stay provision applies to such motions
because it was in conflict with the decisions of several
federal courts. The trial court concluded that it was
bound by Shivers and denied the plaintiff in error’s
motion solely on that ground.
In the present case, the plaintiff in error contends that
this court should overrule Shivers on two alternative
grounds. First, he contends that the Appellate Court in
Shivers lacked jurisdiction to extend the automatic stay
provision to motions by committees for sale to recover
fees and expenses from nondebtors. Second, the plain-
tiff in error contends that, if we conclude that the Appel-
late Court had such jurisdiction in Shivers, that court
incorrectly concluded that the automatic stay provision
should be extended to such motions. After the writ of
error was filed, this court, sua sponte, ordered the par-
ties to address in their appellate briefs the following
two issues: (1) whether the plaintiff in error is aggrieved
by a final judgment of the Superior Court such that he
has standing to bring the writ of error, and (2) whether
the controversy will be rendered moot if the bankruptcy
stay terminates during the pendency of the writ of error.
We note that the automatic stay terminated on July 27,
2017. The bank has filed no appellate brief.6
We conclude that the plaintiff in error has standing
to bring the writ of error. We further conclude that,
although his claim is moot, it is nonetheless reviewable
under the capable of repetition, yet evading review
exception to the mootness doctrine. Addressing the
merits of the plaintiff in error’s claim, we conclude that
state courts lack jurisdiction to extend the automatic
stay provision to motions by committees for sale to
recover fees and expenses from nondebtor foreclosure
plaintiffs and, therefore, that Shivers must be overruled.
I
Because it implicates this court’s subject matter juris-
diction, we first address the issue of whether the plain-
tiff in error is aggrieved by a final judgment and, there-
fore, has standing to bring this writ of error. See State
v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983)
(‘‘[b]ecause our jurisdiction over appeals . . . is pre-
scribed 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’’). The plaintiff in error contends that, because
his motion seeking payment by the bank of his fees and
expenses was essentially a separate third-party claim,
and because it was denied in full, the order denying
the motion is not interlocutory in nature but, rather,
constitutes an appealable final judgment. We disagree.
Although the trial court denied the motion, it is clear
that the denial was without prejudice to the plaintiff in
error’s right to renew the motion after the automatic
stay terminated. See Equity One, Inc. v. Shivers, supra,
150 Conn. App. 755 and n.6 (although order granting
committee for sale’s motion for fees was void because
automatic stay was in place when order was issued,
because stay had since terminated, parties could
‘‘revisit the question of payment for committee fees on
remand’’). Accordingly, we conclude that that order
is interlocutory.
The plaintiff in error also claims, however, that, if
the trial court’s order denying his motion for fees and
expenses is interlocutory, it is reviewable under State
v. Curcio, supra, 191 Conn. 31. In that case, we stated
that, ‘‘[i]n both criminal and civil cases . . . we have
determined certain interlocutory orders and rulings of
the Superior Court to be final judgments for purposes
of appeal. An otherwise interlocutory order is appeal-
able 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.’’ Id.
We acknowledge at the outset of our analysis that
this court’s Curcio jurisprudence is hardly a model of
clarity or consistency. We further acknowledge that, as
a result of this doctrinal confusion, it is possible to
identify both cases that provide support for the conclu-
sion that the trial court’s denial of the plaintiff in error’s
motion for fees and expenses is immediately reviewable
under Curcio and cases that arguably undermine that
conclusion. For the following reasons, however, we
ultimately are persuaded that the trial court’s denial
of the motion for fees and expenses is immediately
reviewable under the second prong of Curcio.
First, immediate review of the trial court’s ruling will
in no way offend the primary public policy considera-
tions that underlie the final judgment rule. We pre-
viously have recognized that the rule’s primary policy
rationale is ‘‘to discourage piecemeal appeals and to
facilitate the speedy and orderly disposition of cases
at the trial court level.’’ (Internal quotation marks omit-
ted.) Mazurek v. Great American Ins. Co., 284 Conn.
16, 33, 930 A.2d 682 (2007). In the present case,
reviewing the denial of the motion for fees and expenses
will have no adverse effect on the speedy and orderly
disposition of the underlying foreclosure action
because the plaintiff in error is not a party to that
action and the issue that he raises in this writ of error
implicates a right that is separable from, and collateral
to, the rights being asserted in the foreclosure action.
See Melia v. Hartford Fire Ins. Co., 202 Conn. 252,
256, 520 A.2d 605 (1987) (observing with approval that,
under federal law, review of interlocutory orders is
available for claims involving a ‘‘right separable from,
and collateral to, rights asserted in the action, too
important to be denied review and too independent of
the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated’’ [inter-
nal quotation marks omitted]); see also Niro v. Niro,
314 Conn. 62, 71–72, 100 A.3d 801 (2014) (distinguishing
situation in which order was reviewable under Curcio
because plaintiff in error was not involved in, and chal-
lenged order was not intertwined with, underlying litiga-
tion, from situation in which Curcio did not apply
because plaintiff in error was party to, and challenged
order was intertwined with, underlying litigation).
Moreover, the policy of discouraging piecemeal
appeals carries little weight under the circumstances
present in this case, in which there is no possibility
that the plaintiff in error’s claim could be raised in a
direct appeal from the judgment in the foreclosure
action. See Lougee v. Grinnell, 216 Conn. 483, 487, 582
A.2d 456 (1990) (interlocutory ruling was reviewable
when underlying proceeding would not result in later
judgment from which appellant could appeal). Rather,
if we decline to review the trial court’s denial of the
plaintiff in error’s motion for fees and expenses under
Curcio, the issue of whether the Appellate Court’s deci-
sion in Equity One, Inc. v. Shivers, supra, 150 Conn.
App. 755, holding that the bankruptcy stay provision
applies to such motions—which was the sole basis for
the trial court’s ruling—may forever evade appellate
review. This is so because, if a committee for sale is
required to wait until the stay is lifted and the motion
for fees and expenses is granted to challenge the initial
denial of the motion pursuant to Shivers, the claim will
be moot, and the committee for sale will no longer be
aggrieved. Accordingly, this court would lack jurisdic-
tion to entertain the plaintiff in error’s claim. See, e.g.,
Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91,
971 A.2d 1 (2009) (‘‘[i]f a party is found to lack
[aggrievement], the court is without subject matter
jurisdiction to determine the cause’’ [internal quotation
marks omitted]); Bornemann v. Connecticut Siting
Council, 287 Conn. 177, 181, 947 A.2d 302 (2008) (‘‘it
is not the province of appellate courts to decide moot
questions, disconnected from the granting of actual
relief or from the determination of which no practical
relief can follow’’ [internal quotation marks omitted]);
see also Practice Book § 72-1 (a) (‘‘[w]rits of error for
errors in matters of law . . . may be brought [only]
from a final judgment of the Superior Court to the
Supreme Court in the following cases . . . a decision
binding on an aggrieved nonparty’’ [emphasis added]).
The dissent suggests, however, that the initial ruling
denying the motion for fees and expenses could be
reviewed after the stay is lifted and the motion is
granted under the capable of repetition, yet evading
review exception to the mootness doctrine. We have
some doubt as to whether that is the case in light of
this court’s suggestion in In re Emma F., 315 Conn.
414, 428 n.12, 107 A.3d 947 (2015), that cases in which
an appellant is no longer aggrieved by the judgment of
the Superior Court because the judgment is no longer
in effect—as distinct from cases in which the judgment
is technically still in effect but intervening factual cir-
cumstances have rendered the appeal moot by depriving
the judgment of any practical significance—are not sub-
ject to the ‘‘capable of repetition, yet evading review’’
exception to the mootness doctrine. See id., 428–29 n.12
(‘‘[G]iven the trial court’s vacatur of the judgment at
issue . . . query whether the [appellant] is still an
‘aggrieved’ party, as is required by General Statutes
§ 52-263. If we were to hear this appeal on its merits,
there does not appear anything left for us to reverse
should the [appellant] prevail—even pyrrhically under
the capable of repetition, yet evading review excep-
tion—insofar as the [appellant] has now received all
of the relief it would have obtained by a successful
appeal.’’). Even if we were to assume that the exception
would apply, however, we still can perceive no reason
why we should decline to apply an exception to the
rule requiring a final judgment for appellate jurisdiction
now merely because, at some later time, when the right
that the plaintiff in error seeks to vindicate—namely,
the right to recover his fees and expenses from the
bank while the automatic stay provision is in effect—
will be forever lost, we might be able to apply an excep-
tion to the mootness doctrine, which also implicates
our appellate jurisdiction.7
Second, and relatedly, the trial court’s ruling threat-
ens to abrogate a right that the plaintiff in error now
holds. See State v. Longo, 192 Conn. 85, 91, 469 A.2d
1220 (1984) (party seeking review of interlocutory order
‘‘must show that that decision threatens to abrogate a
right that he or she then holds’’ [emphasis in original]).8
There is no dispute in the present case that a committee
for sale ordinarily is entitled to recover fees and
expenses immediately upon filing a proper and timely
motion for fees. The sole reason that the plaintiff in
error’s motion for fees and expenses was denied was
that the trial court had ruled that, under Shivers, the
motion was subject to the automatic stay provision.
Thus, if Shivers was wrongly decided, the plaintiff in
error is now being unlawfully deprived of an existing
right to reimbursement.
Third, the plaintiff in error’s claim involves a question
of some public importance. See, e.g., Abreu v. Leone,
291 Conn. 332, 347–48, 968 A.2d 385 (2009) (interlocu-
tory discovery order is reviewable if case involves coun-
terbalancing public policy factor that weighs against
policies underlying final judgment rule); Melia v. Hart-
ford Fire Ins. Co., supra, 202 Conn. 256 (review of
interlocutory orders is available for claims involving
right ‘‘too important to be denied review’’ [internal quo-
tation marks omitted]). ‘‘A committee [for] sale func-
tions as an arm of the court in a judicial sale. The
committee conducting a sale is an agent or representa-
tive of the court.’’ (Internal quotation marks omitted.)
Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 123,
629 A.2d 410 (1993). Under the Appellate Court’s deci-
sion in Shivers, attorneys may be more reluctant to
serve the courts in this capacity when, through no fault
of their own, they are rendered unable to recover their
fees and expenses promptly in foreclosure actions in
which a defendant has declared bankruptcy, and then
must either wait for an indefinite period of time until the
stay terminates or seek a judgment from the bankruptcy
court declaring that the stay does not bar such recovery,
thereby incurring additional fees and expenses for
which the committee ultimately may not be compen-
sated.9 We further note that this issue has arisen with
some frequency in this state.10 Accordingly, it is
important to know whether the decision in Shivers
was correct.
The dissent points out that, in Melia, this court stated
that it ‘‘has no discretionary jurisdiction comparable to
that given the federal courts by [28 U.S.C.] § 1292 (b)
to entertain appeals from interlocutory orders, except
as provided in General Statutes § 52-265a.’’ Melia v.
Hartford Fire Ins. Co., supra, 202 Conn. 256. Although
it is true that this court has no statutory authority other
than § 52-265a to entertain interlocutory appeals, it does
have the authority to treat appeals that are otherwise
interlocutory in character as appeals from final judg-
ments if they satisfy Curcio, and our reading of Melia
satisfies us that we consider federal court decisions to
be persuasive when we are considering the scope of
that authority. Indeed, in Melia, we dismissed the defen-
dant’s interlocutory appeal pursuant to Curcio for the
same reason the Chief Justice previously had denied
the defendant’s petition pursuant to § 52-265a, namely,
that there were ‘‘no significant ramifications affecting
the public interest or entailing injustice from delay that
cannot be substantially redressed by appellate review
of the final judgment after completion of the trial.’’ Id.,
257. It would appear, therefore, that, if the interlocutory
appeal in Melia had involved a matter of significant
public interest or the denial of review had entailed
injustice that could not be redressed by belated appel-
late review of the final judgment, we would have taken
those considerations into account under Curcio. To the
extent that Melia suggests that § 52-265a provides the
exclusive mechanism for bringing an interlocutory
appeal that involves a substantial public interest, we
note that the plaintiff in error in the present case could
not have sought recourse pursuant to § 52-265a because
he is not a party to the action and, therefore, could not
file an appeal. See State v. Gault, 304 Conn. 330, 348,
39 A.3d 1105 (2012) (‘‘statutory authorization to bring
[an appeal pursuant to § 52-265a] is extended only to
‘any party to an action’ ’’). We conclude that, when
a nonparty seeks interlocutory review of a decision
pursuant to Curcio, and the matter satisfies the substan-
tial public interest standard of § 52-265a and also
involves a right that is separable from and collateral to
the rights being asserted in the underlying action, Cur-
cio is capacious enough for us to entertain the writ
of error.
Fourth, unlike, for example, a broad rule that a partic-
ular class of interlocutory discovery rulings, such as
those involving privileged communications, are imme-
diately appealable, which would allow a myriad of
appeals from many types of rulings, if we review the
ruling at issue here, our decision will dispose of that
issue once and for all and will not open the floodgates
to additional writs of error raising the same issue. Cf.
Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646,
655–56 n.6, 954 A.2d 816 (2008) (declining to treat denial
of motion for summary judgment as final appealable
judgment because doing so ‘‘would open the floodgates
to appeals brought from interlocutory orders’’).
Finally, we think it is significant that our appellate
court system created for itself the predicament that it
now finds itself in. It would be bizarre to conclude that,
once the Appellate Court decided in Shivers that a
committee for sale must await the lifting of the auto-
matic stay provision to obtain payment for its fees and
expenses, our trial courts became forever bound by that
decision, even though the issue involves the interpreta-
tion of the federal bankruptcy code and most of the
decisions by bankruptcy courts in this jurisdiction have
disagreed with Shivers; see In re Tasillo, United States
Bankruptcy Court, Docket No. 14-21683 (ASD) (D.
Conn. January 6, 2015); In re VMC Real Estate, LLC,
United States Bankruptcy Court, Docket No. 11-20452
(ASD) (D. Conn. March 9, 2012); In re Rubenstein, 105
B.R. 198 (Bankr. D. Conn. 1989); see also United States
Bank Assn. v. Barber, Superior Court, judicial district
of New Haven, Docket No. CV-XX-XXXXXXX-S (May 20,
2015) (noting that ‘‘[t]he only certainty is that Shivers
currently remains binding on trial judges in Connecti-
cut,’’ and expressing ‘‘sympath[y] to the plight of the
committee, who, through no fault of her own, finds
herself temporarily uncompensated for her labor and
unreimbursed for her out-of-pocket expenses’’); United
States Bank Assn. v. Barber, supra (recognizing that
‘‘bankruptcy judges are known as first-rate jurists [and
presumably have far greater experience with technical
issues of bankruptcy law]’’ than nonbankruptcy judges);
and even though a committee for sale acts on the court’s
behalf. See, e.g., Citicorp Mortgage, Inc. v. Burgos,
supra, 227 Conn. 123. Contrary to the dissent’s con-
tention, our conclusion that the trial court’s ruling pur-
suant to Shivers is reviewable does not further ‘‘muddy
our final judgment jurisprudence’’ but merely provides
a pragmatic solution to a problem of the courts’ own
creation that would otherwise remain forever unre-
solved.
We conclude, therefore, that we may review the plain-
tiff in error’s claim under the second prong of Curcio,
applicable to an order that ‘‘so concludes the rights of
the parties that further proceedings cannot affect
them.’’ State v. Curcio, supra, 191 Conn. 31.
II
We next consider whether the plaintiff in error’s claim
is moot because the automatic stay has terminated. We
conclude that the claim is moot but is reviewable under
the capable of repetition, yet evading review exception
to the mootness doctrine.
We begin with a review of the governing legal princi-
ples. ‘‘Mootness is a question of justiciability that must
be determined as a threshold matter because it impli-
cates this court’s subject matter jurisdiction. . . . [A]n
actual controversy must exist not only at the time the
appeal is taken, but also throughout the pendency of
the appeal. . . . When, during the pendency of an
appeal, events have occurred that preclude an appellate
court from granting any practical relief through its dis-
position of the merits, a case has become moot.’’ (Cita-
tion omitted; internal quotation marks omitted.) Wendy
V. v. Santiago, 319 Conn. 540, 544–45, 125 A.3d 983
(2015).
In the present case, the automatic stay terminated
when Crawford’s bankruptcy claim was dismissed on
July 27, 2017, during the pendency of this writ of error.
Because the automatic stay provision no longer bars the
plaintiff in error from recovering his fees and expenses
from the bank pursuant to § 49-25, our decision in this
case can have no practical effect on his right to recover,
and his claim that the automatic stay provision does
not apply to motions for fees and expenses is, there-
fore, moot.11
An otherwise moot question, however, may qualify
for appellate review under the capable of repetition,
yet evading review exception to the mootness doctrine.
See id., 545. To qualify for this exception, ‘‘three require-
ments must be met. First, the challenged action, or the
effect of the challenged action, by its very nature must
be of a limited duration so that there is a strong likeli-
hood that the substantial majority of cases raising a
question about its validity will become moot before
appellate litigation can be concluded. Second, there
must be a reasonable likelihood that the question pre-
sented in the pending case will arise again in the future,
and that it will affect either the same complaining party
or a reasonably identifiable group for whom that party
can be said to act as surrogate. Third, the question
must have some public importance. Unless all three
requirements are met, the appeal must be dismissed as
moot.’’ (Internal quotation marks omitted.) Id., 545–46.
We explained in part I of this opinion that the issue
raised by the plaintiff in error has some public impor-
tance and that it already has been raised in numerous
cases in this state. Accordingly, it is reasonable to con-
clude that committees for sale who find themselves in
the same position as the plaintiff in error will likely
continue to raise the issue. We conclude, therefore, that
the second and third prongs of the capable of repetition,
yet evading review exception are met.
With respect to the first prong, the plaintiff in error
has provided information showing that, in 2016, the
median time interval between the filing and the closing
of an individual debtor’s chapter 13 bankruptcy case
in the United States Bankruptcy Court for the District
of Connecticut was 248 days. See U.S. Bankruptcy
Courts, BAPCPA Table 3 (December 31, 2016), avail-
able at http://www.uscourts.gov/sites/default/files
/data_tables/bapcpa_3_1231.2016.pdf (last visited
November 18, 2019). We note that more recent statis-
tics from the same source indicate that this interval
has increased to 303 days. See U.S. Bankruptcy Courts,
BAPCPA Table 3 (December 31, 2017), available at
http://www.uscourts.gov/sites/default/files/data_tables
/bapcpa_3_1231.2017.pdf (last visited November 18,
2019). In Sweeney v. Sweeney, 271 Conn. 193, 202–203,
856 A.2d 997 (2004), this court concluded that, when
the challenged action was likely to have a duration of
twenty-three months, the first prong of the capable of
repetition, but evading review exception was satisfied.
See id. (‘‘the record in the present case reveals that
this dissolution action was litigated vigorously by both
parties, resulting in a span of twenty-three months
between the commencement of the action and the final
judgment of dissolution; such a time frame demon-
strates the unlikelihood that appellate resolution
regarding a pendente lite order entered during the
course of such proceedings could be achieved before
the order is superseded’’). We conclude, therefore, that
the average duration of an individual debtor’s chapter
13 bankruptcy proceeding—303 days, or slightly less
than ten months—is sufficiently limited to satisfy the
first prong of the capable of repetition, yet evading
review exception to the mootness doctrine.
Because we conclude that the plaintiff in error’s claim
satisfies all three requirements of the capable of repeti-
tion, yet evading review exception to the mootness doc-
trine, the claim is reviewable.
III
We turn, therefore, to the plaintiff in error’s con-
tention that we should overrule the decision of the
Appellate Court in Equity One, Inc. v. Shivers, supra,
150 Conn. App. 755, holding that the automatic stay
provision operates to bar committees for sale from
recovering fees and expenses from nondebtor plaintiffs
in foreclosure actions that are subject to the stay. As
we indicated, the plaintiff in error contends that Shivers
should be overruled on two alternative grounds. First,
he contends that the Appellate Court in Shivers lacked
subject matter jurisdiction to extend the automatic stay
provision to motions to recover fees and expenses from
nondebtor plaintiffs in mortgage foreclosure actions
because the bankruptcy court has exclusive jurisdiction
to determine the scope of the automatic stay. Second, he
contends that, if the Appellate Court had such subject
matter jurisdiction, it incorrectly determined that the
automatic stay provision applied to such motions. We
conclude that state courts lack subject matter jurisdic-
tion to extend the automatic stay provision to proceed-
ings against nondebtors and, therefore, that Shivers
must be overruled on that ground. Accordingly, we need
not consider whether Shivers was correct on the merits.
Whether a court has subject matter jurisdiction to
entertain a claim is a question of law subject to plenary
review. See, e.g., Fort Trumbull Conservancy, LLC v.
New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).
In making our determination as to whether the courts
of this state have subject matter jurisdiction to extend
the automatic stay provision to proceedings against
nondebtors in the present case, we do not write on a
blank slate. The Appellate Court considered this issue
in Metro Bulletins Corp. v. Soboleski, 30 Conn. App.
493, 496–97, 620 A.2d 1314, cert. granted, 225 Conn.
923, 625 A.2d 823 (1993) (appeal withdrawn June 4,
1993), and concluded that any request to extend the
automatic stay provision to proceedings against a non-
debtor must be made in bankruptcy court.12 The Appel-
late Court in Soboleski noted that, although the auto-
matic stay provision ordinarily ‘‘does not enjoin
litigation against nondebtors,’’ there is ‘‘limited author-
ity for extending the stay to a nondebtor in special
circumstances.’’ Id., 496; see also 11 U.S.C. § 105 (a)
(2012).13 The court also noted, however, that ‘‘the weight
of the case law indicates that a nondebtor, seeking to
extend the stay beyond the debtor, must move for the
extension in the bankruptcy court.’’14 Metro Bulletins
Corp. v. Soboleski, supra, 497. The Appellate Court
found this case law persuasive ‘‘because [i]t is funda-
mental under federal bankruptcy law that the automatic
stay operates for the benefit of the debtor and trustee
only, and gives other parties interested in property
affected by the automatic stay no substantive or proce-
dural rights. . . . Only the bankruptcy court has the
entire picture before it. It would be difficult, if not
impossible, for a state trial court, which has only the
immediate case before it, to determine the best interests
of the bankruptcy estate.’’ (Citation omitted; internal
quotation marks omitted.) Id., 498. Because the defen-
dant in Soboleski, a nondebtor who was seeking the
protection of the automatic stay provision, had not
applied for an extension of the automatic stay in the
bankruptcy court, the Appellate Court concluded that
the trial court properly had denied his motion for a
stay. Id. Thus, although the court in Soboleski did not
expressly conclude that the state trial court lacked sub-
ject matter jurisdiction to entertain the defendant’s
motion for a stay, it did suggest that the bankruptcy
court has exclusive jurisdiction to entertain requests
to extend the automatic stay to proceedings against
nondebtors.
For the reasons that follow, we agree with the Appel-
late Court’s decision in Soboleski. Specifically, we con-
clude that, although the courts of this state have juris-
diction to determine whether the automatic stay
provision, by its own terms, applies to a proceeding in
state court, they do not have jurisdiction to modify the
application of the automatic stay provision pursuant to
11 U.S.C. § 105 (a) or 11 U.S.C. § 362 (d)15 by extending
its application to proceedings to which it does not, by
its own terms, automatically apply or by barring its
application to proceedings to which it does automati-
cally apply.
This issue of whether state courts have jurisdiction
to modify the reach of the automatic stay provision was
discussed at length by the United States Circuit Court
of Appeals for the Ninth Circuit in In re Gruntz, 202
F.3d 1074 (9th Cir. 2000). In that case, the bankruptcy
debtor, Robert Gruntz, was charged in state court with
the criminal offense of failing to support his dependent
children. Id., 1077. After he was convicted, Gruntz filed
an appeal, claiming that the criminal prosecution was
barred by the automatic stay provision. See generally
People v. Gruntz, 29 Cal. App. 4th 412, 35 Cal. Rptr. 2d
55 (1994). The California Court of Appeal concluded
that the automatic stay did not apply to criminal prose-
cutions and affirmed the conviction. See id., 421. Gruntz
ultimately filed an ‘‘adversary proceeding’’ in the bank-
ruptcy court, requesting that that court declare the crim-
inal proceedings void because they violated the auto-
matic stay provision. See In re Gruntz, supra, 1077.
The bankruptcy court dismissed the proceeding on the
ground that it was collaterally estopped by the judgment
of the state court that the automatic stay provision did
not apply. See id. On appeal, the United States District
Court concluded that the bankruptcy court was bound
by the state court’s judgment that the automatic stay
provision did not apply pursuant to the Rooker-Feld-
man doctrine.16 See id., 1077–78. The defendant then
appealed to the Ninth Circuit, claiming that a state court
ruling on the extent of the automatic stay does not bind
the bankruptcy court. Id., 1078.
The Ninth Circuit began its analysis by noting that
‘‘[t]he automatic stay is self-executing, effective upon
the filing of the bankruptcy petition.’’ Id., 1081. It further
noted that ‘‘[t]he automatic stay is an injunction issuing
from the authority of the bankruptcy court, and bank-
ruptcy court orders are not subject to collateral attack
in other courts. See Celotex Corp. [v. Edwards, 514 U.S.
300, 306–13, 115 S. Ct. 1493, 131 L. Ed. 2d 403 (1995)].
That is so not only because of the comprehensive juris-
diction vested in the bankruptcy courts . . . but also
because persons subject to an injunctive order issued
by a court with jurisdiction are expected to obey that
decree until it is modified or reversed, even if they
have proper grounds to object to the order.’’ (Citation
omitted; internal quotation marks omitted.) In re
Gruntz, supra, 202 F.3d 1082.
The Ninth Circuit concluded that ‘‘[a]ny state court
modification of the automatic stay would constitute an
unauthorized infringement upon the bankruptcy court’s
jurisdiction to enforce the stay. While Congress has
seen fit to authorize courts of the United States to
restrain [state court] proceedings in some special cir-
cumstances, such as the automatic stay, it has in no
way relaxed the old and [well established] judicially
declared rule that state courts are completely without
power to restrain [federal court] proceedings in in per-
sonam actions.’’ (Internal quotation marks omitted.) Id.
‘‘In sum, by virtue of the power vested in them by
Congress, the federal courts have the final authority to
determine the scope and applicability of the automatic
stay. The [s]tates cannot, in the exercise of control over
local laws and practice, vest [s]tate courts with power
to violate the supreme law of the land. . . . Thus, the
Rooker-Feldman doctrine is not implicated by collateral
challenges to the automatic stay in bankruptcy. A bank-
ruptcy court simply does not conduct an improper
appellate review of a state court when it enforces an
automatic stay that issues from its own federal statutory
authority. In fact, a reverse Rooker-Feldman situation
is presented when state courts decide to proceed in
derogation of the stay, because it is the state court
which is attempting impermissibly to modify the federal
court’s injunction.’’ (Citation omitted; footnotes omit-
ted; internal quotation marks omitted.) Id., 1083; see
also id., 1084 (‘‘modifying the automatic stay is not the
act of a state court merely interpreting federal law; it
is an intervention in the operation of an ongoing federal
bankruptcy case, the administration of which is vested
exclusively in the bankruptcy court’’).17 The Ninth Cir-
cuit ultimately concluded, however, that, because crimi-
nal proceedings against a debtor are expressly excepted
from the automatic stay provision pursuant to 11 U.S.C.
§ 362 (b) (1), no modification of the stay was required
for California to prosecute Gruntz, and, therefore, there
was no need for the California court to seek the
approval of the bankruptcy court before allowing the
prosecution to go forward. Id., 1087.
We recognize that some cases addressing this issue
may be interpreted as holding that, although the federal
bankruptcy courts have the final say on whether the
automatic stay provision should be modified, they do
not have exclusive jurisdiction to make that determina-
tion. Rather, the state court may make that determina-
tion in the first instance, subject to later review by the
bankruptcy court. See Lockyer v. Mirant Corp., 398
F.3d 1098, 1106 (9th Cir. 2005) (state courts ‘‘have the
power to decide whether the automatic stay applies to
its proceedings,’’ but if bankruptcy court ‘‘later decides
that the state court was incorrect, the state court pro-
ceedings in violation of the stay are void’’); Chao v.
Hospital Staffing Services, Inc., 270 F.3d 374, 384 (6th
Cir. 2001) (‘‘[i]f . . . the suit before the [nonbank-
ruptcy] court may proceed because an exception to the
automatic stay authorizes prosecution of the suit, [that]
court may enter needful orders not themselves inconsis-
tent with the automatic stay,’’ but if nonbankruptcy
court’s determination is erroneous, bankruptcy court
can later declare entire action void). We think the better
interpretation of these cases, however, is that a state
court has jurisdiction to determine whether, under its
plain terms, the automatic stay provision applies to the
proceeding before it, not that the court has jurisdiction
pursuant to 11 U.S.C. § 105 (a) or 11 U.S.C. § 362 (d)
to modify the automatic stay. Indeed, in both Lockyer
and Chao, the issue before the court was whether the
proceeding before the nonbankruptcy court came
within the statutory exception to the automatic stay
provision for proceedings to enforce the government’s
‘‘police or regulatory power’’ under 11 U.S.C. § 362 (b)
(4); Lockyer v. Mirant Corp., supra, 1107; Chao v. Hos-
pital Staffing Services, Inc., supra, 385; not whether
the court should extend the application of the automatic
stay or bar its enforcement pursuant to 11 U.S.C. § 105
(a) or 11 U.S.C. § 362 (d).
We conclude, therefore, that, although state courts
have jurisdiction to interpret the provisions of the bank-
ruptcy code and orders of the bankruptcy court to deter-
mine whether, under their plain terms, the automatic
stay provision applies to a state court proceeding—
which interpretations are subject to correction by the
bankruptcy court—state courts do not have jurisdiction
to change the status quo by modifying the reach of the
automatic stay provision either by extending the stay
to proceedings to which it does not automatically apply
or by granting relief from the stay in proceedings to
which it does automatically apply. Rather, any modifica-
tion of the stay must be sought in bankruptcy court.
In Equity One, Inc. v. Shivers, supra, 150 Conn. App.
745, the Appellate Court noted that ‘‘[c]ourts have
extended the application of the automatic stay to non-
debtors in unusual circumstances where doing so would
further the purpose behind the stay.’’ Id., 753. The court
ultimately concluded that such unusual circumstances
existed because the bankrupt defendant would be
required to indemnify the nondebtor bank for any pay-
ments that the bank made to the committee for sale.
Id., 754–55. In each case cited by the Appellate Court
to support its conclusion, however, the court had
implicitly recognized that the stay provision did not
apply automatically to claims against nondebtors. See
id., 753–54.18 Indeed, several courts have expressly held
to that effect. See, e.g., Rhode Island Hospital Trust
National Bank v. Dube, 136 F.R.D. 37, 39 (D.R.I. 1990)
(automatic stay provision ‘‘does not apply automatically
. . . to actions against a debtor’s principals, partners,
officers, employees, guarantors, or sureties’’ [internal
quotation marks omitted]); In re Richard B. Vance &
Co., 289 B.R. 692, 697 (Bankr. C.D. Ill. 2003) (‘‘extension
of the stay to nonbankrupt parties is not automatic and
must be requested affirmatively by the debtor’’); In re
Bidermann Industries U.S.A., Inc., 200 B.R. 779, 782
(Bankr. S.D.N.Y. 1996) (automatic stay provision ‘‘does
not apply automatically to stay actions against [non-
debtors]’’); In re All Seasons Resorts, Inc., 79 B.R. 901,
904 (Bankr. C.D. Cal. 1987) (‘‘the automatic stay does
not automatically encompass [codefendants]’’ [empha-
sis in original]); Alvarez v. Bateson, 176 Md. App. 136,
148, 932 A.2d 815 (2007) (automatic stay provision
‘‘applies automatically to debtors, but not to [nonbank-
rupt codefendants]’’). We agree with these courts. When
the stay provision does not apply automatically to a
proceeding, action by the bankruptcy court is required
to extend the application of the stay. See In re Richard
B. Vance & Co., supra, 697 (extension of stay to non-
bankrupt parties ‘‘must be requested affirmatively by
the debtor’’); In re Bidermann Industries U.S.A., Inc.,
supra, 782 (to stay action against nondebtor, ‘‘[t]he
debtor must obtain a stay order from the bankruptcy
court’’); In re All Seasons Resorts, Inc., supra, 903
(extension of automatic stay provision to nondebtors
‘‘requires the filing of an appropriate adversary proceed-
ing under [11 U.S.C. § 105 (a) and 11 U.S.C. § 362 (d)]
to achieve the desired result’’); W.W. Gay Mechanical
Contractor, Inc. v. Wharfside Two, Ltd., 545 So. 2d
1348, 1350 (Fla. 1989) (nondebtor codefendant ‘‘must
apply to and obtain [stay] from the bankruptcy court’’);
Alvarez v. Bateson, supra, 148 (‘‘[A] court must make
a determination as to whether the automatic stay
extends to cover a [nonbankrupt] codefendant of the
debtor. It follows that each determination should be
made by the bankruptcy court supervising the debtor’s
estate upon request of the debtor, because it is the
debtor’s interests that are being protected by the stay.’’).
As we explained, the bankruptcy court has exclusive
jurisdiction to extend the stay to proceedings to which
it does not automatically apply. We conclude, therefore,
that the Appellate Court in Shivers lacked jurisdiction
to extend the stay provision to motions to recover a
committee for sale’s fees and expenses from a non-
debtor bank. Accordingly, we conclude that Shivers
must be overruled.
In the present case, the trial court relied exclusively
on Shivers when it denied the plaintiff in error’s motion
for fees and expenses. We conclude, therefore, that the
case must be remanded to the trial court so that it may
vacate the order denying the plaintiff in error’s motion
and entertain that motion on the merits.
The writ of error is granted and the case is remanded
with direction to vacate the order denying the plaintiff
in error’s motion for fees and expenses, and to conduct
further proceedings according to law.
In this opinion PALMER, D’AURIA and ECKER,
Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
This case was originally argued before a panel of this court consisting of
Justices Palmer, McDonald, Robinson, D’Auria, Mullins and Kahn. There-
after, Justice Ecker was added to the panel and has read the briefs and
appendices, and listened to a recording of the oral argument prior to partici-
pating in this decision.
1
Title 11 of the 2012 edition of the United States Code, § 362 (a), provides
in relevant part that a bankruptcy petition ‘‘operates as a stay, applicable
to all entities, of . . . (1) the commencement or continuation . . . of a
judicial, administrative, or other action or proceeding against the debtor
that was or could have been commenced before the commencement of the
case under this title, or to recover a claim against the debtor that arose
before the commencement of the case under this title . . . .’’
2
We note that these parties in the underlying foreclosure action are defen-
dants in error in the present proceeding. For the sake of simplicity, we refer
to U.S. Bank National Association as the bank and to Crawford by name.
We also note that, although the city of Hartford, the Department of Social
Services, and the United States Secretary of Housing and Urban Development
were also named as defendants in the underlying foreclosure action, they
are not involved in the present proceeding.
3
General Statutes § 49-25 provides in relevant part: ‘‘[I]f for any reason
the 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. . . .’’
4
General Statutes § 51-199 (b) provides in relevant part: ‘‘The following
matters shall be taken directly to the Supreme Court . . . (10) writs of
error . . . .’’
5
Practice Book § 72-1 provides in relevant part: ‘‘(a) Writs of error for
errors in matters of law only may be brought from a final judgment of the
Superior Court to the Supreme Court in the following cases: (1) a decision
binding on an aggrieved nonparty . . . .’’
6
This court also, sua sponte, invited the Litigation Section and the Com-
mercial Law and Bankruptcy Section of the Connecticut Bar Association to
file an amicus curiae brief addressing the following question: ‘‘Should this
court overrule Equity One, Inc. v. Shivers, [supra, 150 Conn. App. 745],
insofar as that case required the trial court to deny the committee’s motion
for an interim award of fees and expenses during the automatic bankruptcy
stay?’’ The Commercial Law and Bankruptcy Section, acting on behalf of
the Connecticut Bar Association as a whole, accepted our invitation and
submitted an amicus curiae brief in support of the plaintiff in error’s position
that this court should overrule Shivers. We thank the Commercial Law and
Bankruptcy Section for its comprehensive brief.
7
The dissent also suggests that the plaintiff in error could have filed a
declaratory judgment action in state court to obtain the relief that he seeks.
As the dissent recognizes, however, the plaintiff in error could not have
brought such an action after the trial court ruled on his motion for fees and
expenses in the present case because a party may not bring an action in
the Superior Court effectively asking that court to review a ruling of another
trial court in another case. See Valvo v. Freedom of Information Commis-
sion, 294 Conn. 534, 543–44, 985 A.2d 1052 (2010) (‘‘[o]ur jurisprudence
concerning the trial court’s authority to overturn or to modify a ruling in a
particular case assumes, as a proposition so basic that it requires no citation
of authority, that any such action will be taken only by the trial court with
continuing jurisdiction over the case, and that the only court with continuing
jurisdiction is the court that originally rendered the ruling’’). With respect
to the dissent’s contention that the plaintiff in error could have brought
such an action before filing his motion for fees and expenses, we are aware
of no authority for the proposition that a court may issue an advisory,
declaratory ruling on an issue that will arise in ongoing litigation in another
case. In our view, the question of whether a committee for sale is entitled
to immediate payment properly can be entertained only by the trial court
in which such payment can be sought, which is the court in which the
foreclosure action is pending. In any event, we fail to see how requiring the
plaintiff in error to jump through these procedural hoops would be preferable
as a matter of judicial policy to entertaining the writ of error in the pres-
ent case.
8
Again, we acknowledge that it is difficult to discern a clear and consistent
pattern in this court’s application of this principle. Compare State v. Longo,
supra, 192 Conn. 91 (‘‘[W]here a defendant plausibly demonstrates that a
trial court order threatens his or her double jeopardy right not to be tried
twice for the same offense, the appeal is within our jurisdiction. State v.
Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct.
423, 62 L. Ed. 2d 320 [1979]. That order is appealable because, at the time
of the appeal, the defendant already has an unqualified right to be free from
double jeopardy.’’), with Melia v. Hartford Fire Ins. Co., supra, 202 Conn.
257 (‘‘It is true that a remand for a new trial resulting from an erroneous
order to disclose information protected by the [attorney-client] privilege
cannot wholly undo the consequences of its violation . . . . Vindication at
the appellate level can seldom regain all that has been lost by an erroneous
determination of a cause in the trial court.’’ [Internal quotation marks omit-
ted.]); see also State v. Longo, supra, 92–93 (ruling denying youthful offender
status is not reviewable under Curcio even though denial may deprive
defendant irretrievably of right to privacy conferred by youthful offender
statute); State v. Longo, supra, 98 (Healy, J., dissenting) (court’s ‘‘focal
concern for irreparable harm in the final judgment rule is indeed lessened
by today’s ruling’’). It is hard to understand why the constitutional right to
be free from double jeopardy is any more ‘‘unqualified’’ at the time of an
interlocutory appeal than the common-law right to invoke the attorney-
client privilege against disclosure (assuming that the communications at
issue are, in fact, privileged) or the statutory right to youthful offender
status (assuming that the defendant does, in fact, satisfy the criteria for
such status). We recognize that, in Longo, the court emphasized that, unlike
the right to double jeopardy protection, defendants were, at that time,
required to apply for youthful offender status pursuant to General Statutes
(Rev. to 1983) § 54-76c, and the granting of the application was within the
discretion of the trial court. See State v. Longo, supra, 92. Discretion can
be abused, however, and, when it is, an existing right is violated. Cf. Giaimo
v. New Haven, 257 Conn. 481, 509, 778 A.2d 33 (2001) (applicant for statutory
benefit ‘‘has a protected property interest in the benefit when, under the
governing statute, the decision-making body would have no discretion to
deny the application if the applicant could establish at a hearing that it met
the statutory criteria’’). It would appear, therefore, that the real driving force
in these cases is this court’s judgment regarding the importance of the right
at issue, not the ontological status of the right at the time the appeal is filed.
See, e.g., Melia v. Hartford Fire Ins. Co., supra, 256 (review of interlocutory
orders is available for claims involving right ‘‘too important to be denied
review’’ [internal quotation marks omitted]). In any event, in the present
case, all of the relevant considerations weigh in favor of immediate review,
including the public importance of the right that the plaintiff in error is
attempting to vindicate.
9
Indeed, this is precisely what happened in CT Tax Liens 2, LLC v.
Tasillo, Superior Court, judicial district of Hartford, Docket No. CV-12-
6035369-S (October 1, 2014). After the trial court in that case denied the
committee for sale’s motion for fees and expenses on the ground that the
motion was subject to the automatic stay, the committee filed a motion in
the bankruptcy court seeking a declaratory judgment that the automatic
stay did not apply. See In re Tasillo, United States Bankruptcy Court, Docket
No. 14-21683 (ASD) (D. Conn. January 6, 2015). The bankruptcy court agreed
with the committee and rendered a judgment declaring that the automatic
stay did not bar the committee from seeking fees and expenses from the
nondebtor plaintiff. Id. The committee then returned to the Superior Court
and renewed its motion for fees and expenses, seeking an additional $1000
in attorney’s fees and a filing fee of $176 in connection with the bankruptcy
court proceeding. See CT Tax Liens 2, LLC v. Tasillo, Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S (January 29, 2015).
The trial court granted the motion in part but denied the fees and expenses
associated with the bankruptcy court proceeding. Id.
We note that the decision of a federal bankruptcy court in a particular
case is not binding on our trial courts in other cases. Thus, as the dissent
recognizes, if we do not review the plaintiff in error’s claim, our trial courts
will continue to be bound by the Appellate Court’s decision in Shivers,
despite our shared ‘‘concern about the viability of Shivers going forward’’
in light of Tasillo.
10
See, e.g., In re Hooker, United States Bankruptcy Court, Docket No. 18-
20504 (JJT) (D. Conn. June 27, 2018); In re Tasillo, United States Bankruptcy
Court, Docket No. 14-21683 (ASD) (D. Conn. January 6, 2015); In re VMC
Real Estate, LLC, United States Bankruptcy Court, Docket No. 11-20452
(ASD) (D. Conn. March 9, 2012); In re Rubenstein, 105 B.R. 198, 201–204
(Bankr. D. Conn. 1989); Equity One, Inc. v. Shivers, supra, 150 Conn. App.
749–56; HSBC Bank USA, N.A. v. Schmidt, Superior Court, judicial district
of New Britain, Docket No. CV-XX-XXXXXXX-S (February 25, 2016); United
States Bank Assn. v. Barber, Superior Court, judicial district of New Haven,
Docket No. CV-XX-XXXXXXX-S (May 20, 2015); Citimortgage, Inc. v. Sheehan,
Superior Court, judicial district of New Haven, Docket No. CV-XX-XXXXXXX-
S (February 27, 2015); CT Tax Liens 2, LLC v. Tasillo, Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S (October 1, 2014);
Citimortgage, Inc. v. Hilton, Superior Court, judicial district of Ansonia-
Milford, Docket No. CV-XX-XXXXXXX-S (August 25, 2014).
11
The plaintiff in error has not renewed his motion to recover the fees
and expenses that he sought in his original motion for fees and expenses.
Accordingly, the trial court’s ruling on that motion is still in effect, and the
plaintiff in error is still technically aggrieved. See footnote 5 of this opinion.
12
We note that the court in Equity One, Inc. v. Shivers, supra, 150 Conn.
App. 745, did not cite the decision in Soboleski.
13
Title 11 of the 2012 edition of the United States Code, § 105 (a), provides:
‘‘The court may issue any order, process, or judgment that is necessary or
appropriate to carry out the provisions of this title. No provision of this
title providing for the raising of an issue by a party in interest shall be
construed to preclude the court from, sua sponte, taking any action or
making any determination necessary or appropriate to enforce or implement
court orders or rules, or to prevent an abuse of process.’’
14
The Appellate Court followed this proposition with citations to several
cases. Metro Bulletins Corp. v. Soboleski, supra, 30 Conn. App. 497; see
Ingersoll-Rand Financial Corp. v. Miller Mining Co., 817 F.2d 1424, 1427
(9th Cir. 1987) (although bankruptcy court may lift stay upon request of
party pursuant to 11 U.S.C. § 362 [d], stay was in effect because bankruptcy
court had ordered no such relief and no statutory exception to stay provision
applied); Federal Land Bank of Spokane v. Stiles, 700 F. Supp. 1060, 1063
(D. Mont. 1988) (‘‘[a]lthough 11 U.S.C. § 105 [a] has been held to authorize
a stay order as to a [codefendant],’’ no stay was in effect because bankruptcy
court had not ordered one); B & B Associates v. Fonner, 700 F. Supp. 7, 9
(S.D.N.Y. 1988) (‘‘[a]lthough a [b]ankruptcy [c]ourt may extend the protec-
tion of an automatic stay to a [nondebtor] in some circumstances,’’ no stay
was in effect because bankruptcy court had not ordered one); see also
Rhode Island Hospital Trust National Bank v. Dube, 136 F.R.D. 37, 39
(D.R.I. 1990); In re Codfish Corp., 97 B.R. 132, 135 (Bankr. D.P.R. 1988); In
re All Seasons Resorts, Inc., 79 B.R. 901, 903 (Bankr. C.D. Cal. 1987); In re
MacDonald/Associates, Inc., 54 B.R. 865, 867 (Bankr. D.R.I. 1985); In re
Precision Colors, Inc., 36 B.R. 429, 431 (Bankr. S.D. Ohio 1984); W.W. Gay
Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So. 2d 1348, 1350
(Fla. 1989); Collier v. Eagle-Picher Industries, Inc., 86 Md. App. 38, 48, 585
A.2d 256, cert. denied sub nom. Corhart Refractories Co. v. Collier, 323 Md.
33, 591 A.2d 249 (1991).
We note that most of these cases do not directly support the Appellate
Court’s conclusion in Soboleski that a motion to extend the automatic stay
provision to a proceeding against a nondebtor must be brought in bankruptcy
court. In Collier v. Eagle-Picher Industries, Inc., supra, 86 Md. App. 49–50,
the state court’s jurisdiction to extend the stay was not directly at issue,
and the court appears to have assumed that it had such jurisdiction, although
it ultimately considered and denied a nondebtor’s motion for a stay. In In
re Codfish Corp., supra, 97 B.R. 135, In re All Seasons Resorts, Inc., supra,
79 B.R. 903, In re MacDonald/Associates, Inc., supra, 54 B.R. 867–68, and
In re Precision Colors, Inc., supra, 36 B.R. 431, the respective bankruptcy
courts held only that they had jurisdiction to extend the stay to a proceeding
against a nondebtor pursuant to 11 U.S.C. § 105 (a), not that state courts
lacked such jurisdiction. In Rhode Island Hospital Trust National Bank v.
Dube, supra, 136 F.R.D. 39, the court held only that the automatic stay
provision does not apply automatically to nondebtors, and did not address
the issue of whether it had jurisdiction to extend the stay.
15
Title 11 of the 2012 edition of the United States Code, § 362 (d), provides
in relevant part: ‘‘On request of a party in interest and after notice and a
hearing, the court shall grant relief from the stay provided under subsection
(a) of this section, such as by terminating, annulling, modifying, or condition-
ing such stay . . . .’’
16
‘‘[This] doctrine takes its name from Rooker v. Fidelity Trust Co., 263
U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923), and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).
Rooker held that federal statutory jurisdiction over direct appeals from state
courts lies exclusively in the Supreme Court and is beyond the original
jurisdiction of federal district courts. See [Rooker v. Fidelity Trust Co.,
supra, 415–16]. Feldman held that this jurisdictional bar extends to particular
claims that are ‘inextricably intertwined’ with those a state court has already
decided. See [District of Columbia Court of Appeals v. Feldman, supra,
486–87].’’ In re Gruntz, supra, 202 F.3d 1078 n.1.
17
See also In re Raboin, 135 B.R. 682, 684 (Bankr. D. Kan. 1991) (‘‘this
court has exclusive jurisdiction to determine the extent and effect of the
stay, and the state court’s ruling to the contrary does not bar the debtor’s
present motion’’); In re Sermersheim, 97 B.R. 885, 888 (Bankr. N.D. Ohio
1989) (‘‘[i]t is the bankruptcy court alone that has the exclusive jurisdiction
to determine questions involving the automatic stay’’ [emphasis in original;
internal quotation marks omitted]).
18
See Queenie, Ltd. v. Nygard International, 321 F.3d 282, 287 (2d Cir.
2003) (‘‘[t]he automatic stay can apply to [nondebtors], but normally does
so only when a claim against the [nondebtor] will have an immediate adverse
economic consequence for the debtor’s estate’’); A.H. Robins Co. v. Piccinin,
788 F.2d 994, 999 (4th Cir.) (‘‘there are cases . . . [in which] a bankruptcy
court may properly stay the proceedings against [nonbankrupt codefen-
dants] but . . . in order for relief for such [nonbankrupt] defendants to be
available . . . there must be unusual circumstances and certainly [s]ome-
thing more than the mere fact that one of the parties to the lawsuit has
filed a [c]hapter 11 bankruptcy must be shown in order that proceedings
be stayed against [nonbankrupt] parties’’ [internal quotation marks omit-
ted]), cert. denied, 479 U.S. 876, 107 S. Ct. 251, 93 L. Ed. 2d 177 (1986); In
re Jefferson County, 491 B.R. 277, 284 (Bankr. N.D. Ala. 2013) (‘‘[g]enerally,
the automatic stay . . . applies only to certain actions taken or not taken
with respect to a debtor, and not with respect to such action or inaction
affecting other parties’’); In re North Star Contracting Corp., 125 B.R. 368,
370 (S.D.N.Y 1991) (automatic ‘‘stay generally applies only to bar proceedings
against the debtor’’); In re Metal Center, 31 B.R. 458, 462 (Bankr. D. Conn.
1983) (‘‘[g]enerally, the automatic stay does not apply to proceedings
against nondebtors’’).