N.D.R. Liuzzi, Inc. v. Lighthouse Litho, LLC., 34537.

• Decision Date: 06 August 2013
• Docket Number: No. 34537.,34537.
• Citation: 144 Conn.App. 613,75 A.3d 694
• Court: Connecticut Court of Appeals
• Parties: N.D.R. LIUZZI, INC., et al. v. LIGHTHOUSE LITHO, LLC.

144 Conn.App. 613

75 A.3d 694

N.D.R. LIUZZI, INC., et al.

v.LIGHTHOUSE LITHO, LLC.

No. 34537.

Appellate Court of Connecticut.

Argued April 8, 2013.

Decided Aug. 6, 2013.

John M. Zullo, North Haven, for the appellants (plaintiffs).

William F. Gallagher, New Haven, with whom, on the brief, were Cheryl J. Wilcox and David E. Schancupp, New Haven, for the appellee (defendant).

LAVINE, KELLER and BISHOP, Js.

KELLER, J.

The plaintiffs, N.D.R. Liuzzi, Inc., and Liuzzi Real Estate, Inc., appeal from the decision of the trial court granting the motion of the defendant, Lighthouse Litho, LLC, to hold the plaintiffs in civil contempt for their violation of an ex parte temporary injunction and its denial of the plaintiffs' motion to reargue that same decision. On appeal, the plaintiffs have raised several claims.¹ We do not reach the merits of any of these claims because the decisions from which the plaintiffs appeal are not appealable final judgments. Accordingly, we dismiss the plaintiffs' appeal.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The plaintiffs initiated this summary process action on September 16, 2011, seeking to recover from the defendant possession of their property located at 72 Rossotto Drive in Hamden (property). The plaintiffs alleged that they had entered into a written lease agreement with the defendant on March 1, 2006, in which the defendant agreed to lease the property from the plaintiffs for two years. The plaintiffs sought to recover possession of the property following the defendant's failure to pay rent and the termination of the leasing agreement by a lapse of time. On October 13, 2011, the parties entered into a stipulation in which they agreed that (1) judgment of possession would enter in favor of the plaintiffs with a stay of execution through November 24, 2011, (2) the defendant would pay $1500 for use and occupancy by November 13, 2011, and (3) the defendant would return the keys to the property and remove all of its equipment upon vacating. The court granted the parties' motion for judgment in accordance with the stipulation on the same day.

On November 28, 2011, the clerk of the court issued a summary process execution for possession. On December 22, 2011, the defendant filed a motion to quash execution in the nature of a writ of audita querela and an application for an ex parte temporary injunction pursuant to General Statutes § 52–471, ² seeking to restrain the plaintiffs from executing on the judgment until the motion to quash execution was decided or “until further order from the court.” The court granted the defendant's application for an ex parte temporary injunction on the same day. On January 5, 2011, the plaintiffs filed an objection to the motion to quash execution. On the same day, the parties entered into another written stipulation in which they agreed that (1) the defendant's writ of audita querela would go off but would not be withdrawn; (2) the defendant would make certain payments to the plaintiffs on January 13 and 23,2012; (3) starting January 24, 2012, the defendant would have thirty days of access to the property to remove all of its remaining belongings and personal effects; and (4) the defendant would completely vacate the property no later than February 23, 2012.

The defendant timely made the agreed upon January 13, 2012 payment, but failed to make the January 23, 2012 payment on time. In accordance with the terms of the January 5, 2012 stipulation, the plaintiffs, in response to the defendant's failure to make the payment, reclaimed their objection to the motion to quash execution.

On January 28, 2012, an agent for the plaintiffs removed some of the defendant's belongings from the property. On February 1, 2012, the defendant filed a motion for contempt of court alleging that the plaintiffs violated the court's December 22, 2012 ex parte temporary injunction order by removing the defendant's belongings from the property. On February 2, 2012, a hearing was held on the motion for contempt.When asked by the court whether he wished to proceed on the motion for contempt, plaintiffs' counsel replied in the affirmative and proceeded to address the merits of the motion. During the hearing, the plaintiffs did not claim that they lacked sufficient notice of the motion for contempt or that they were unable to prepare a sufficient defense to the motion. Plaintiffs' counsel also stated that he believed the court's ruling on the plaintiffs' motion to quash execution “may render moot ... the motion for contempt and the emergency motion for access.”

After concluding that the plaintiffs wilfully had violated the temporary injunction order, the court granted the motion for contempt on February 2, 2012, but stated that the “issue of penalties and of plaintiffs' ability to purge the contempt will be decided on a later date.” On February 7, 2012, the plaintiffs filed a motion to reargue the court's ruling on the motion for contempt. The defendant's motion to quash execution and the plaintiffs' corresponding objection were argued on April 19, 2012, but the court did not render a decision on the motion prior to the filing of this appeal. During the same hearing, the court denied the plaintiffs' motion to reargue the motion for contempt and also explicitly postponed its decision regarding the plaintiffs' ability to purge the contempt. On April 23, 2012, the plaintiffs filed the present appeal from the denial of their motion to reargue and the decision of the court granting the defendant's motion for contempt. Subsequently, on May 4, 2012, the defendant filed a motion to dismiss the appeal, claiming that the court's decision on the motion for contempt was not a final judgment. On June 27, 2012, this court denied the motion to dismiss without prejudice, inviting the parties to address the final judgment issue on the merits in their respective appellate briefs. Additional facts will be set forth as necessary.

I

We first address the plaintiffs' claims challenging the decision of the court granting the defendant's motion for contempt. The defendant argues that plaintiffs' appeal should be dismissed insofar as it relates to the contempt finding because the finding was not an appealable final judgment. The plaintiffs claim that the contempt finding was a final judgment for purposes of appeal under General Statutes § 52–400d (a).³ We agree with the defendant and, accordingly, dismiss the appeal insofar as it relates to the contempt finding.

“The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal.... The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51–197a and 52–263; Practice Book § [61–1].... The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.... In some instances, however, it is unclear whether an order is an appealable final judgment. In the gray area between judgments which are undoubtedly final and others that are clearly interlocutory ... [our Supreme Court] has adopted the following test, applicable to both criminal and civil proceedings: An otherwise interlocutory order is appealable in two 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).” (Citation omitted; internal quotation marks omitted.) Khan v. Hillyer, 306 Conn. 205, 209–10, 49 A.3d 996 (2012). “[A] contempt order is considered final for appellate purposes when the order so substantially resolves the rights and duties of the parties that further proceedings relating to the judgment of contempt cannot affect them.” (Emphasis in original; internal quotation marks omitted.) Id., at 216, 49 A.3d 996. “[A] civil contempt order requiring the contemnor to incur a cost or take specific action ... satisfies the second prong of Curcio and, therefore constitutes an appealable final judgment.” Id., at 217, 49 A.3d 996.

Preliminarily, we find no merit in the plaintiffs' claim that the court's contempt finding in this case is an appealable final judgment under § 52–400d (a). On the basis of our examination of the text of the statute and its relationship to other statutes; General Statutes § 1–2z; we conclude that this statute has no bearing on the present type of action. This section is contained in chapter 906 of the General Statutes entitled “Postjudgment Procedures” and was enacted as part of the Postjudgment Remedies Act, General Statutes § 52–350a et seq. This chapter governs various postjudgment procedures, including compliance orders, available to parties seeking to enforce a money judgment. See General Statutes § 52–350a (15) (defining “postjudgment procedure” as “any procedure commenced after rendition of a money judgment, seeking or otherwise involving ... a compliance order”); General Statutes § 52–350a (13) (defining “money judgment” as “a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money”). General Statutes § 52–350b (a) provides in relevant part: “Sections ... [52–350a, et seq.] ... and 52–400a to 52–400d, inclusive, as amended or enacted by sections 1 to 27, inclusive, of public act 83–581 apply to all postjudgment proceedings commenced on or after July 14, 1983.” (Emphasis added.) In light of the clear interrelation of § 52–400d with the other statutes located in the postjudgment procedure chapter, we interpret the language of § 52–400d (a), providing that “any court decision ... on a contempt proceeding ... shall be a final judgment for the purpose of appeal,” as referring to those violations for which a court may commit a party for contempt under that chapter.

Here, the court found the...