Lamb v. Mitchell

Decision Date10 March 2017
Docket NumberFSTCV166027382S
CourtSuperior Court of Connecticut
PartiesJames Lamb v. Karen Mitchell

UNPUBLISHED OPINION

MEMORANDUM OF DECISION re MOTION FOR STAY (#128.00)

Kenneth B. Povodator, J.

The appellant has taken an appeal from the court's denial of a motion to dismiss; an abbreviated summary of the procedural background is recited in the trial court's articulation dated March 2, 2017.

Shortly after the appeal was filed, the appellant moved for a stay pending the outcome of the appeal. When the case appeared on a short calendar, the court issued an order to the effect that it perceived no action to be necessary. The appellant did not ask for the court to entertain argument, did not ask for the court to reconsider, did not ask the court to issue a written decision (through the mechanism set forth in Practice Book § 64-1(b), [1] but instead filed a motion for review by the Appellate Court.

The court notes that the motion for stay cited NO relevant authority with respect to whether an automatic stay was in effect or whether the situation came within the scope of discretionary stays. Other than State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1993) which addresses the issue of whether an order is appealable and not the existence of a stay, both cases cited by the appellant-- Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183, 184 (1982) and Schaghticoke Tribal Nation v Harrison, 264 Conn. 829, 834, 826 A.2d 1102, 1106 (2003)--relate to the " jurisdiction first" rule requiring a court to address and resolve jurisdictional issues before proceeding with the case; they say nothing about the existence or absence of automatic stays. In light of the extensive, detailed procedures in Chapter 61 relating to stays, an analogy to the jurisdiction first rule is of trivial significance--particularly when, as discussed below there is at least some appellate decisional authority on the issue.

The court is compelled to observe that the appellant is taking inherently inconsistent positions--the denial of the motion to dismiss is an appealable decision under Curcio except that it is not an appealable decision under Curcio for purposes of an automatic stay. Practice Book § 61-11 creates a presumption of an automatic stay unless otherwise provided by law, and the appellant has not cited any authority for the non-existence of an automatic stay in connection with an appeal authorized by Curcio .

Independent of this case, the court recently reviewed the recent and relevant discussion in State v. J.M.F., 170 Conn.App. 120, 168-75 (2017), and the cases cited therein. The situations discussed all appear to be instances where a trial court declined to acknowledge the existence of an automatic stay, and on appellate review, the trial court's actions were determined to be correct. The problem this court foresees is the second-level jurisdictional implications, because the Appellate Court seems to have endorsed a process whereby a trial court is authorized, at least implicitly, to make Curcio -type determination of the existence of an appealable final order/judgment as a necessary predicate to determining whether in a non-obvious situation, the automatic appellate stay is in place. In effect, despite the existence of a pending motion to dismiss this appeal, the implication of State v. J.M.F. and the cases cited therein is that this court should make a preliminary determination of appellate jurisdiction--because if the appeal is proper and the Appellate Court does have jurisdiction over the appeal, then an automatic stay presumptively is in effect.

This court previously has recognized that Curcio -type determinations are issues properly within the jurisdiction of the Appellate Court, not the trial court; see, e.g., #224.00 in Cadavid v. Ranginwala, FSTCV126014019S [2] and again, in light of the pendency of the motion to dismiss in this case which would address the issue with an appropriate level of authority, the court did not deem it appropriate to " presume" to decide, even on a preliminary basis, the Curcio issue. Even after reading State v. J.M.F., it is not clear whether the Appellate Court is directing trial courts to make such decisions, or instead is stating that if/when a trial court makes such a decision (explicitly or implicitly) and the decision is correct based on the Appellate Court's eventual review of the underlying jurisdictional issue, the decision is not subject to...

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