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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 statutory 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 jurisprudence, 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 quotation 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 omitted.) 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 proceeding 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 Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., supra, 279 Conn. 232–34 (order denying

plaintiffs’ motion for prepleading security under statute

prohibiting unauthorized insurer without assets in Connecticut 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 defendants 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 conclude rights of parties that further proceedings could

not affect them when court indicated that it was prepared to modify order if later developments warranted

such action), and New England Savings Bank v. Nicotra, 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 practical 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 Curcio is satisfied characterizes the right sought to be vindicated 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, however, 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 language’’ [internal quotation marks omitted]). The majority 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 immediate 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 automatic 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 developments 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 policy 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, accordingly, 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 purpose of absolute immunity under common law, protecting against threat of suit, compels conclusion that

denial of summary judgment on ground of such immunity 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 discovery 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 interlocutory orders, except as provided [for public interest

appeals] in . . . § 52-265a’’). Although our final judgment 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 reviewable 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 majority’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 plaintiff 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) (declaratory judgment in favor of committee of sale); CT Tax

Liens 2, LLC v. Tasillo, Superior Court, judicial district

of Hartford, Docket No. CV-12-6035369-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 conclusions 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 majority’s concern about the viability of Shivers going forward. 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 bankruptcy 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 bankruptcy 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 judgment. . . . 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 Bysiewicz 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 reservations 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.