Abreu v. Leone

• Decision Date: 28 April 2009
• Docket Number: No. 18048.,18048.
• Citation: 291 Conn. 332,968 A.2d 385
• Court: Connecticut Supreme Court
• Parties: Joseph ABREU v. Karissa LEONE.

968 A.2d 385

291 Conn. 332

Joseph ABREU v. Karissa LEONE.

No. 18048.

Supreme Court of Connecticut.

Argued February 9, 2009.

Decided April 28, 2009.

John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, Gregory T. D'Auria, associate attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (intervening plaintiff department of children and families).

Tushar G. Shah, with whom, on the brief, was Jonathan A. Cantor, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

KATZ, J.

The intervening plaintiff, the department of children and families (department), appeals, upon our grant of certification, from the judgment of the Appellate Court dismissing the department's appeal from the trial court's order compelling the plaintiff, Joseph Abreu, to respond to deposition questions in a separate proceeding brought by the defendant minor child, Karissa Leone, against the department. The sole issue in this certified appeal is whether the Appellate Court properly concluded that the trial court's order compelling the plaintiff to respond to certain deposition questions was not a final judgment and therefore that the Appellate Court lacked jurisdiction over the appeal. We conclude that the Appellate Court improperly dismissed the appeal, and accordingly, we reverse the judgment of that court and remand the case for consideration of the merits of the department's appeal.

The record reveals the following undisputed facts and procedural history. The defendant filed a claim with the claims commissioner seeking permission to bring an action against the department for personal injuries allegedly inflicted by the plaintiff's alleged foster child, Geovanny M.¹ Pursuant to that action, a notice of deposition and subpoena duces tecum was issued to the plaintiff. The plaintiff thereafter filed this independent action in the Superior Court, by summons and complaint, asking the court to quash the subpoena and for a protective order from the deposition on the ground that he is prohibited, under General Statutes § 17a-28,² from disclosing the matters sought to be discovered in the underlying proceeding, namely, information about a foster child. The department intervened as a party plaintiff in the Superior Court action and filed a brief in support of the plaintiff's position.

On September 14, 2006, the trial court, R. Robinson, J., issued a decision in favor of the plaintiff and allowing the deposition, but holding that "the language of [§ 17a-28(b)] clearly prohibits the [plaintiff] from testify[ing] about, or producing copies of documents in his possession which relate to a foster child. . . ." The court, however, allowed the deposition to go forward in light of the fact that the defendant might "seek other information that is not in violation of [§ 17a-28(b)]. . . ."

A deposition of the plaintiff subsequently was held. At the deposition, counsel disagreed about the scope of the trial court's decision. Upon the advice of his attorney and in light of the potential criminal and civil penalties for wrongful disclosure of protected information under § 17a-28(b), the plaintiff declined to answer some of the questions that were posed to him. The defendant's counsel suggested: "What I think I'm going to do is put my questions on the record, and then file a motion for clarification." In accordance with his stated intention, counsel for the defendant read a number of questions into the record. Counsel for the plaintiff and counsel for the department then objected on the record to each disputed question on the ground that to respond would violate § 17a-28(b), and the plaintiff declined to answer the disputed questions.³

Thereafter, the parties filed cross motions, seeking either to compel or to avoid the disclosures and for monetary sanctions.⁴ The trial court, Pittman, J., declined to impose monetary sanctions but ordered the plaintiff to answer the disputed questions.⁵ The department filed a motion to reargue, which the court denied. The department thereafter appealed from the trial court's decision to the Appellate Court.⁶ The plaintiff did not file a separate appeal, relying instead on the department to protect his confidentiality interests underlying § 17a-28(b). The Appellate Court sua sponte issued an order directing the parties to appear and give reasons, if any, why the appeal should not be dismissed for lack of a final judgment, citing Barbato v. J. & M. Corp., 194 Conn. 245, 478 A.2d 1020 (1984), and Presidential Capital Corp. v. Reale, 240 Conn. 623, 692 A.2d 794 (1997). After a hearing, the Appellate Court dismissed the appeal. This court thereafter granted the department's petition for certification to appeal, limited to the following question: "Did the Appellate Court properly dismiss this appeal for lack of a final judgment?" Abreu v. Leone, 285 Conn. 904, 938 A.2d 592 (2007). We conclude that the appeal was from a final judgment.

We begin with well settled jurisprudence. The subject matter jurisdiction of our appellate courts is limited by statute to appeals from final judgments. General Statutes § 52-263; see generally W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2009 Ed.) § 61-1; C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 3.1 et seq. The legislature may, however, deem otherwise interlocutory actions of the trial courts to be final judgments, as it has done by statute in limited circumstances. See, e.g., General Statutes § 31-118 (authorizing appeals from temporary injunctions in labor dispute); General Statutes § 52-278l (authorizing appeals from prejudgment remedies); see also W. Horton & K. Bartschi, supra, §§ 61-2 through at 61-11. Alternatively, the courts may deem interlocutory orders or rulings to "have the attributes of a final judgment" if they fit within either of the two prongs of the test set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 653, 954 A.2d 816 (2008). Under Curcio, "the landmark case in the refinement of final judgment jurisprudence"; Wells Fargo Bank of Minnesota, N.A. v. Jones, 85 Conn.App. 120, 124, 856 A.2d 505 (2004); Sharon Motor Lodge, Inc. v. Tai, 82 Conn. App. 148, 153, 842 A.2d 1140, cert. denied, 269 Conn. 908, 852 A.2d 738 (2004); interlocutory orders are immediately appealable if the order or ruling (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, supra, at 31, 463 A.2d 566.

"The first prong of the Curcio test . . . requires that the order being appealed from be severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding. . . . If the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy the first prong of Curcio. . . . Obviously a ruling affecting the merits of the controversy would not pass the first part of the Curcio test. The fact, however, that the interlocutory ruling does not implicate the merits of the principal issue at the trial . . . does not necessarily render that ruling appealable. It must appear that the interlocutory ruling will not impact directly on any aspect of the [action]." (Citations omitted; internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 225-26, 901 A.2d 1164 (2006).

"The second prong of the Curcio test focuses on the nature of the right involved. It 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 right will be irretrievably lost and the [parties] irreparably harmed unless they may immediately appeal. . . . One must make at least a colorable claim that some recognized statutory or constitutional right is at risk." (Citation omitted; internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 785-86, 865 A.2d 1163 (2005). Moreover, "when a statute vests the trial court with discretion to determine if a particular [party] is to be accorded a certain status, the [party] may not invoke the rights that attend the status as a basis for claiming that the court's decision not to confer that status deprives the [party] of protections to which [it] is entitled. . . . The right itself must exist independently of the order from which the appeal is taken." State v. Longo, 192 Conn. 85, 92-93, 469 A.2d 1220 (1984).

The department claims that the trial court's order compelling the plaintiff to answer the disputed questions is immediately appealable under both prongs of the Curcio test. Specifically, the department contends that the Appellate Court had jurisdiction to consider this appeal because the trial court order in the present case terminated a separate and distinct proceeding and so concluded the department's rights and the plaintiff's rights by forcing the disclosure of privileged information in violation of § 17a-28 that further proceedings could not remedy. The department contends that the cases on which the Appellate Court relied, Barbato v. J. & M. Corp., supra, 194 Conn. at 245, 478 A.2d 1020, and Presidential Capital Corp. v. Reale, supra, 240 Conn. at 623, 692 A.2d 794, in which the only issue properly before the court was whether the case fell within the first prong of Curcio, are distinguishable. It further contends that the present case more closely resembles Lougee v. Grinnell, 216 Conn. 483, 487, 582 A.2d 456 (1990), wherein this court had concluded that the first prong of Curcio was satisfied.

The defendant contends in response that, because an order issued upon a motion for discovery ordinarily is not appealable because it...