January 26, 2017
J. Klau, with whom was Bradley K. Cooney, for the appellant
B. Blumenfeld, with whom, on the brief, were Lorinda S. Coon
and Lawrence J. Merly, for the appellees (defendants).
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and
Robinson, Js. [*]
ROGERS, C. J.
case raises the question of whether a party's actions
during the pendency of her appeal have resulted in that
appeal becoming moot. The plaintiff, Ruth Gladstein, appeals
from the judgment of the Appellate Court affirming the trial
court's dismissal of her action due to lack of subject
matter jurisdiction; Gladstein v.
Goldfield, 163 Conn.App. 579, 587, 137 A.3d 60
(2016); which followed the trial court's denial of the
plaintiff's motion to substitute the trustee of her
bankruptcy estate as the correct party plaintiff. The
plaintiff claims that the Appellate Court improperly refused
to consider her claim that the trial court had applied an
improper standard when denying her motion to substitute,
concluding instead that she had induced the error of which
she complained. Because the bankruptcy trustee, at the
plaintiff's behest, has abandoned the underlying action
and the plaintiff no longer is seeking to substitute the
trustee as party plaintiff, we conclude that our resolution
of this claim would afford the plaintiff no practical relief.
Accordingly, we dismiss the plaintiff's appeal as moot.
following undisputed facts and procedural history are
relevant to the appeal. The plaintiff is a beneficiary of a
trust established by her mother in 1992. In 1997, the
plaintiff's mother executed an amendment to the trust
that reduced the plaintiff's residual interest therein.
In July, 2008, the plaintiff and her husband filed a petition
for bankruptcy in the United States Bankruptcy Court for the
District of Nevada (bankruptcy court). In July, 2009, the
bankruptcy court granted the plaintiff and her husband a
discharge of their debts. In September, 2009, the plaintiff
filed the present action in her own name against the
defendants, her sister, Sarann Goldfield, and her
brother-in-law, Alvin Gold-field, alleging, inter alia,
misuse of trust funds as well as forgery and undue influence
in connection with the 1997 amendment of the trust, and
Attorney Martin Wolf and his law firm, Cohen and Wolf, P.C.,
alleging, inter alia, breach of fiduciary duty. Wolf had
drafted the trust and its amendment and served as trustee.
2008 bankruptcy court filings, the plaintiff did not disclose
her interest in her mother's trust or her potential legal
claims against the defendants. Pursuant to federal bankruptcy
law, the plaintiff was required to do so. See 11 U.S.C.
§ 541 (a) (1) (debtor must disclose ‘‘all
legal or equitable interests . . . in property as of the
commencement of the case''); 11 U.S.C. § 541 (a)
(7) (duty to disclose is continuous so as to include any
interest acquired after commencement of case). Moreover, her
claims against the defendants were part of the bankruptcy
estate and belonged to the bankruptcy trustee and not to her
individually. For that reason, the defendants filed
motions to dismiss this action for lack of subject matter
jurisdiction due to the plaintiff's lack of
response, the plaintiff conceded that she lacked standing and
filed a motion to substitute the bankruptcy trustee as the
proper plaintiff pursuant to General Statutes § 52-109,
which the defendants objected. A hearing, at which evidence
was presented, was held on the motion. On October 30, 2013,
after concluding that the plaintiff had failed to show that
she had brought the action in her own name due to mistake, as
contemplated by § 52-109, the trial court denied the
motion to substitute the bankruptcy trustee as plaintiff,
then dismissed the action for lack of subject matter
jurisdiction. Thereafter, the plaintiff filed an appeal with
the Appellate Court, claiming that the trial court improperly
had disallowed the substitution of the bankruptcy trustee.
the plaintiff's appeal to the Appellate Court remained
pending, she requested that the bankruptcy trustee abandon
the underlying cause of action. On August 7, 2014, the
bankruptcy court granted the trustee's motion to abandon
the action, nunc pro tunc. As a result of this ruling, the
plaintiff's claims against the defendants now belong to
her, alone, to pursue.
initial brief to the Appellate Court, filed thereafter, the
plaintiff contended that the August 7, 2014 order of the
bankruptcy court merited a reversal of the trial court's
October 30, 2013 judgment dismissing her action to allow
further proceedings to be prosecuted in her own name. The
defendants moved to strike the plaintiff's brief, arguing
that it relied on material outside of the trial court record
and pertaining to events that postdated the judgment. After
the Appellate Court granted the defendants' motion to
strike, the plaintiff filed a substitute brief in which she
argued instead that the trial court had applied an improper
standard in deciding her motion to substitute.
March 8, 2016, the Appellate Court decided the
plaintiff's appeal. As previously indicated, that court
declined to review the plaintiff's claim on its merits,
reasoning instead that the plaintiff had induced the action
of the trial court that she was challenging on appeal and,
therefore, had waived the right to review. Gladstein
v. Goldfield, supra, 163 Conn.App.
585-86.The plaintiff's appeal to this court
briefs to this court and at oral argument, the plaintiff
alluded to the posttrial proceedings in the bankruptcy court
and indicated that, in the event she prevailed and the case
were remanded to the trial court, she intended to move that
her motion to substitute be declared moot. Following oral
argument, this court, sua sponte, ordered the parties to
submit supplemental briefs addressing the following issue:
‘‘ ‘Is this appeal moot, in light of the
representation of plaintiff's counsel that the plaintiff
no longer is seeking the substitution of the bankruptcy
trustee as party plaintiff?' '' The plain- tiff,
in her supplemental brief, contends that the appeal is not
moot because a live controversy continues between the parties
in regard to her claims of the defendants' wrongdoing in
connection with her mother's trust, and this court can
provide practical relief in the manner of an unrestricted
remand. The defendants, for their part, do not challenge this
contention. We disagree with the parties and conclude that
this appeal is moot.
presents a legal question and implicates this court's
subject matter jurisdiction, a threshold matter to resolve.
Burton v.Commissioner of Environmental
Protection, 323 Conn. 668, 677, 150 A.3d 666 (2016).
This court has a duty to dismiss cases over which it lacks
subject matter jurisdiction, which cannot be conferred by the
consent of the parties. Bender v.Bender,
292 Conn. 696, 704 n.5, 975 A.2d 636 (2009); see also
Lyon v.Jones, 291 Conn. 384, 392, 968 A.2d
416 (2009) (appropriate to consider mootness even when not
raised by parties). We may address a mootness issue if there
is either evidence in the record suggesting mootness or an
acknowledgment in a party's brief, or at oral argument,
as to the existence of facts ...