Gorelick v. Montanaro

• Decision Date: 28 February 2006
• Docket Number: No. 25485.,25485.
• Citation: 94 Conn.App. 14,891 A.2d 41
• Court: Connecticut Court of Appeals
• Parties: Glenn GORELICK et al. v. Emily MONTANARO et al. Michael Montanaro v. Glenn Gorelick, Trustee, et al.

891 A.2d 41

94 Conn.App. 14

Glenn GORELICK et al. v. Emily MONTANARO et al.

Michael Montanaro v. Glenn Gorelick, Trustee, et al.

No. 25485.

Appellate Court of Connecticut.

Argued September 12, 2005.

Decided February 28, 2006.

COPYRIGHT MATERIAL OMITTED

A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., Stamford, for the appellant (named plaintiff in the first case, named defendant in the second case).

James P. Blanchfield, Trumbull, for the appellees (defendants in the first case, named plaintiff in the second case Michael Montanaro et al.).

Carolyn R. Linsey, Trumbull, for the appellee (named defendant in the first case, defendant in the second case Emily Montanaro).

LAVERY, C.J., and SCHALLER and DUPONT, Js.^*

Opinion

DUPONT, J.

This is Glenn Gorelick's consolidated appeal from the judgments rendered in two actions after trial to the court.¹ He appeals from the judgments² as a plaintiff in one case and as a defendant in the other. In the first action, instituted in November, 1993, by Dennis Gorelick³ and Glenn Gorelick, the amended complaint named Emily Montanaro, Michael Montanaro and Wendy Montanaro as defendants. That complaint included counts alleging wrongful withholding of funds, breach of contract, waste and mismanagement, and unfair trade practices,⁴ and sought an accounting, money damages, specific performance of a partnership agreement dated July 31, 1979, the appointment of a receiver of rents and a distribution of partnership funds.⁵ The second action involved in this appeal, filed in December, 2001, by Michael Montanaro against Glenn Gorelick, trustee, Dennis Gorelick, trustee, and Emily Montanaro, sought a dissolution of the partnership or a partition by sale of the real estate known as 10 Boston Avenue in Bridgeport, "with a division of the proceeds pursuant to the [p]artnership agreement...." In that action, the trial court found in favor of the plaintiff, Michael Montanaro, ordering a partition sale and a winding up of the partnership.

The issues raised by the sole appellant, Glenn Gorelick,⁶ include whether the court (1) failed to decide the whole case, (2) improperly failed to find that Emily Montanaro breached her fiduciary duties, (3) improperly found that Glenn Gorelick had unclean hands, (4) improperly held that Glenn Gorelick lacked standing to sue Emily Montanaro for financial mismanagement and (5) improperly found that the lease of the partnership with Town Fair Tire Center of North Avenue, Inc. (Town Fair), imposed on the landlord the obligation to repair the premises at 10 Boston Avenue.⁷ We do not reach the substantive issues raised by the appellant and instead dismiss the appeal for lack of a final judgment, as discussed hereinafter.

I BACKGROUND

In 1977, brothers Michael Montanaro and Richard Montanaro, their mother, Emily Montanaro, and their cousins, Dennis Gorelick and Glenn Gorelick, each were conveyed a one-fifth interest in a parcel of commercial property at 10 Boston Avenue by Emily Montanaro's mother, Ellen Berty.⁸ At oral argument in this court, the parties agreed that Dennis Gorelick no longer had any interest in the real estate at the time the second action involved in this appeal was commenced and that Glenn Gorelick, as trustee, owns a 40 percent share of the realty, as reflected on the land records.⁹ There is also no dispute among the parties that Michael Montanaro owns 20 percent and Emily Montanaro owns 40 percent of the real estate, as stated on the land records of Bridgeport.¹⁰ In 1979, the original five landowners formed a partnership, known as Boston Avenue Properties, to develop the property and to manage the income derived from the property. The partnership was governed by a partnership agreement.¹¹

Problems between the partners began in the mid-1990s when Berty's health began to fail, and Emily Montanaro began to care for her and manage her financial affairs.¹² Emily Montanaro became aware that Dennis Gorelick, who, along with Glenn Gorelick, had managed Berty's affairs to that point, had been fraudulently misappropriating Berty's money. An action was filed by Emily Montanaro, as executrix of Berty's estate, in which judgment was rendered in 1996 against Dennis Gorelick for $147,712.06. Another action was filed, in March, 1998, by Emily Montanaro, as executrix, claiming that Dennis Gorelick fraudulently had conveyed assets and seeking to set aside those conveyances in order to collect the judgment she had obtained. See Montanaro v. Gorelick, 73 Conn.App. 319, 807 A.2d 1083 (2002).¹³

The actions that are the subject of the present appeal were consolidated and tried to the court, D. Brennan, J., in three days in June, 2002. The court reserved decision after conclusion of all of the evidence and ordered posttrial briefs. Judge Brennan subsequently resigned prior to rendering a judgment. The parties stipulated to allow a successor judge, Doherty, J., to render judgment on the basis of the transcript, exhibits, briefs and oral argument. In effect, the parties agreed to allow a different judge to decide the cases without the benefit of observing and hearing the testimony of witnesses.¹⁴

PAGE CONTAINED FOOTNOTES

II FINALITY OF JUDGMENTS

The appellant claims that the court failed to decide all of the issues raised in the first count of the Gorelick v. Montanaro (Gorelick) action. That issue is tantamount to raising a jurisdictional claim and, therefore, presents a question of law for which our review is plenary. If the court did not dispose of all of the issues raised,¹⁵ jurisdiction would, in the usual case, be lacking, and the appeal would be dismissed without reaching the merits of the dispute. "[O]ur jurisdiction over appeals ... is prescribed by statute [and] we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim." Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 194, 884 A.2d 981 (2005). The appellant primarily claims that the court did not determine the quantifiable shares of the distributable income to which the parties are entitled and did not distribute such income in Gorelick. Because we conclude that the successor court failed to address the question of quantifiable shares in Gorelick and explicitly reserved that decision for a later date in Montanaro v. Gorelick (Montanaro),¹⁶ we agree and dismiss the appeal for lack of a final judgment.

The subject matter jurisdiction of this court and our Supreme Court is limited by statute to final judgments. General Statutes § 52-263;¹⁷ see generally W Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2005 Ed.) § 61-1; see also C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed.2000) § 3.1 et seq. Our appellate courts lack jurisdiction to hear an appeal that is not brought from a final judgment. General Statutes § 52-263; see State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).¹⁸ "The lack of a final judgment is a jurisdictional defect that mandates dismissal." Lord v. Mansfield, 50 Conn.App. 21, 25, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). The final judgment requirement is grounded in considerations of judicial economy, specifically, a policy discouraging piecemeal litigation that wastes valuable judicial time and resources. See State v. Curcio, supra, at 30, 463 A.2d 566. If parties were allowed to file an immediate appeal from any trial court ruling made prior to the conclusion of the case, the appellate courts might waste time deciding appeals from earlier rulings when the eventual outcome in the trial court might well favor the party who was aggrieved by, and sought review of, the earlier ruling. In addition, allowing piecemeal appeals results in fragmented litigation in the trial courts.

Here, two cases were consolidated for trial. The second case, Montanaro, sought partition by sale and a dissolution of partnership. The first case, Gorelick, almost entirely concerned the partnership, but did not seek its dissolution. On appeal, all of the appellant's claims, except the claim that the immediate sale of the realty was not warranted on the facts, concern the causes of action related to the partnership. The two cases, thus, are intertwined to a certain extent. We begin our discussion by determining what the judgment files in each case provided. We must review the judgment files and the memorandum of decision in order to decide the import of the court's judgments, namely, whether the court determined all of the issues presented.

Practice Book § 6-3 provides: "(a) Judgment files in civil ... cases shall be prepared when: (1) an appeal is taken... (b) [u]nless otherwise ordered by the judicial authority, the judgment file... shall be prepared ... in all other cases, in the clerk's discretion, by counsel or the clerk...." The judgment file is a record of the decision of the court. Stafford Higgins Industries, Inc. v. Norwalk, 15 Conn.App. 752, 757, 546 A.2d 340 (1988). If there is a discrepancy between the judgment file, as signed by the court and the memorandum of decision, the former prevails. Id. The judgment file, however, is a clerical document, which, even if missing, does not prevent a judgment from having been rendered. Lehto v. Sproul, 9 Conn.App. 441, 445, 519 A.2d 1214 (1987). The issues of an appeal may be considered even if there is no judgment file. DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 274, 471 A.2d 638 (1984). In this case, there were judgment files prepared by the trial court clerk that we next review.

The judgment file in Gorelick recites that the action sought "disbursement of partnership funds, appointment of a receiver, monetary damages and other relief." It then states: "The court, having heard the parties, finds that the request to appoint a receiver to wind up the partnership affairs should be and the same is granted. Whereupon it is adjudged...