Burger and Burger, Inc. v. Murren

• Decision Date: 24 March 1987
• Court: Connecticut Supreme Court
• Parties: BURGER AND BURGER, INC. v. Thomas B. MURREN et al. Thomas B. MURREN et al. v. BURGER AND BURGER, INC.

Page 812

522 A.2d 812

202 Conn. 660

BURGER AND BURGER, INC. v. Thomas B. MURREN et al.

Thomas B. MURREN et al. v. BURGER AND BURGER, INC.

Supreme Court of Connecticut.

Argued Dec. 10, 1986.

Decided March 24, 1987.

Bernard Green, Bridgeport, for the appellant (Thomas B. murren).

William B. Barnes, Milford, for the appellee (Burger & Burger, Inc.).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

CALLAHAN, Justice.

The dispositive issue on this appeal is whether the granting of a motion to disqualify counsel in a civil case is an appealable final judgment. The procedural and factual history of this case is undisputed. After a contract dispute arose, the plaintiff in the first case, Burger & Burger, Inc. (Burger), an insurance company, commenced an action against the defendants, Thomas Murren, a former agent of the company, and Murphy & Murphy, Inc., Murren's present employer. In a separate action, Murren and Murphy & Murphy, Inc., brought a countersuit against Burger. On April 12, 1985, Burger moved to disqualify Murren's counsel, Green & Gross, P.C., in each of these cases because one of the attorneys associated with Green & Gross, P.C., had formerly represented Burger in a number of other matters. The trial court, Spear, J., granted the motions on May 16, 1985, and these appeals followed. On July 18, 1985, in considering a motion to combine the appeals, we raised the issue, sua sponte, of whether the trial court's order disqualifying counsel is a final judgment from which an appeal may be taken. We conclude that such an order does not constitute a final judgment, and that the appeals must accordingly be dismissed for lack of jurisdiction.

Under current law in Connecticut, the denial of a motion to disqualify an attorney is not considered an appealable final judgment, but the granting of such motion is considered immediately appealable. State v. Rapuano, 192 Conn. 228, 229 n. 1, 471 A.2d 240 (1984); Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 506, 457 A.2d 296 (1983). "A decision of this court is a controlling precedent until overruled or qualified. Daury v. Ferraro, 108 Conn. 386, 389, 143 A. 630 [1928]." Herald Publishing Co. v. Bill, 142 Conn. 53, 61-62, 111 A.2d 4 (1955); see Taylor v. Robinson, 196 Conn. 572, 578, 494 A.2d 1195 (1985) (Peters, C.J., dissenting), appeal dismissed, --- U.S. ----, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); State v. Castonguay, 194 Conn. 416, 435, 481 A.2d 56 (1984). "[A] court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it." Herald Publishing Co. v. Bill, supra, 142 Conn. at 62, 111 A.2d 4; W. Maltbie, Connecticut Appellate Procedure pp. 434-35. We are persuaded that such reasons and logic exist in this case.

At the time of our decision in Rapuano, federal precedent was divided on the question of the appealability of the granting of a motion to disqualify, in either civil or criminal cases. See, e.g., Kahle v. Oppenheimer & Co., 748 F.2d 337, 338-39 (6th Cir.1984); Gibbs v. Paluk, 742 F.2d 181, 184 (5th Cir.1984); Interco Systems, Inc. v. Omni Corporate Services, Inc., 733 F.2d 253, 255 (2d Cir.1984); Armstrong v. McAlpin, 625 F.2d 433, 440-41 (2d Cir.1980), vacated on other grounds and remanded, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). The recent decision of the United States Supreme Court in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), has, however, resolved this question on the federal level by concluding that disqualification orders in civil cases are not appealable final judgments. Cf. Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (disqualification orders in criminal cases are not appealable final judgments). In view of this recent change, we have decided to reconsider our position.

It is established that, "except in special cases, such as appeals upon reservations; State v. Sanabria, 192 Conn. 671, 681-85, 474 A.2d 760 (1984); or upon certification pursuant to General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n. 1, 485 A.2d 1272 (1984); the jurisdiction of this court is restricted to appeals from judgments that are final. General Statutes § 52-263; Practice Book § 3000 (now § 4000); Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, A.2d (1987); Doublewal Corporation v. Toffolon, 195 Conn. 384, 388-89, 488 A.2d 444 (1985)." Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 408-409, 521 A.2d 566 (1987). The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. See State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982). An order disqualifying counsel in a civil case, however, is not a final judgment on the merits of the litigation; it is an interlocutory order of the trial court. Such interlocutory orders are considered final for purposes of appeal in two narrow 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, 191 Conn. 27, 31, 463 A.2d 566 (1983); Schieffelin & Co. v. Department of Liquor Control, supra, 202 Conn. at 409, 521 A.2d 566; Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 257, 520 A.2d 605; Daginella v. Foremost Ins. Co., 197 Conn. 26, 30-31, 495 A.2d 709 (1985). We conclude that an order disqualifying counsel in a civil case neither terminates a separate and distinct proceeding nor concludes the rights of the parties so that further proceedings cannot affect them.

The first prong of the Curcio test, termination of a separate and distinct proceeding, 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." State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984). Assessment of the disqualification decision will, however, in most cases, turn on the particular factual situation of the case. Richardson-Merrell, Inc. v. Koller, supra, 472 U.S. at 437-39, 105 S.Ct. at 2764-65; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981); see also Kahle v. Oppenheimer & Co., supra, 339, citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). As the United States Supreme Court indicated in Richardson-Merrell, Inc. v. Koller, supra, 472 U.S. at 437, 105 S.Ct. at 2764, even if some orders disqualifying counsel are separable from the merits of the litigation, many are not. "Orders disqualifying attorneys on the ground that they should testify at trial, for example, are inextricable from the merits because they involve an assessment of the likely course of the trial and the effect of the attorney's testimony on the judgment. Kahle v. Oppenheimer & Co., [supra, 339]. Appellate review of orders disqualifying counsel for misconduct may be entwined with the merits of the litigation as well. If reversal hinges on whether the alleged misconduct is 'likely to infect future proceedings' ... courts of appeals will often have to review the nature and content of those proceedings to determine whether the standard is met." Richardson-Merrell, Inc. v. Koller, supra, 472 U.S. at 439, 105 S.Ct. at 2765. Similarly, as the brief of Burger points out, disqualification orders based upon Canon 4 ¹ of the Code of Professional Responsibility, which imposes on counsel the obligation to preserve the confidences and secrets of a client, are not separable because they arise out of the trial court's supervision of the main action. The trial court must analyze the facts of the case before it, and the past proceedings between the parties, to determine whether an attorney has violated an ethical rule. See Goldenberg v. Corporate Air, Inc., supra, 189 Conn. at 510-11, 457 A.2d 296.

We conclude, therefore, that a disqualification order cannot be considered to be "separate and distinct" from the main action. The fact that the practical effect of an appeal from such an order would be to interrupt the trial on the merits; Practice Book § 4065 (formerly § 3060F); see Richardson-Merrell, Inc. v. Koller, supra, 472 U.S. at 434, 105 S.Ct. at 2763; demonstrates that the appeal is not severable from the main action. As the United States Supreme Court stated in Richardson-Merrell, Inc. v. Koller, supra, even if the appellate court failed to impose a stay pending the determination of the appeal, "it would take an intrepid ... [trial court] Judge to proceed to trial with alternate counsel while her decision disqualifying an attorney is being examined...."

The first prong of the Curcio test not having been satisfied, we next consider whether the order so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. Our inquiry under this part of the Curcio test is not whether Murren has a right which has been injured, but whether that right can be affected by later trial level proceedings, or by an appeal from a final judgment on the merits. Daginella v. Foremost Ins. Co., supra, 197 Conn. at 31-33, 495 A.2d 709. An order granting a motion for disqualification does not conclude the rights of the parties. " 'The parties [are] still in court; the issues in the case [are] still open and [may] be fully litigated....' Beach v. Beach Hotel Corporation, 115 Conn. 708, 163 A. 416 (1932)." Franchi v. Farmholme, Inc., 191 Conn. 201, 209, 464 A.2d 35 (1983). As mentioned previously, an order disqualifying counsel is related factually to the cause of action involved, and therefore events which unfold during trial may have a profound effect on...