New Hartford v. Ct. Resources Recovery Auth.

• Decision Date: 19 May 2009
• Docket Number: No. 17880.,17880.
• Citation: 291 Conn. 502,970 A.2d 578
• Court: Connecticut Supreme Court
• Parties: TOWN OF NEW HARTFORD et al. v. CONNECTICUT RESOURCES RECOVERY AUTHORITY et al.

970 A.2d 578

291 Conn. 502

TOWN OF NEW HARTFORD et al. v. CONNECTICUT RESOURCES RECOVERY AUTHORITY et al.

No. 17880.

Supreme Court of Connecticut.

Argued October 16, 2008.

Decided May 19, 2009.

Louis R. Pepe, with whom were Richard F. Wareing, Richard H. Goldstein, Daniel J. Klau, Joseph J. Chambers, and, on the brief, David W. Case, Hartford, for the appellant (named defendant).

David S. Golub, with whom were Jonathan M. Levine, Stamford, Joseph V. Meaney, Jr., Hartford, and, on the brief, Marilyn J. Ramos and Craig N. Yankwitt, Stamford, for the appellees (plaintiffs).

ROGERS, C.J., and DiPENTIMA, McLACHLAN, GRUENDEL and ROBINSON, Js.^*

GRUENDEL, J.

This is one of several appeals concerning a certified class action brought by the plaintiffs¹ against the named defendant, Connecticut Resources Recovery Authority.² The question presented in this appeal is whether the trial court properly granted the plaintiffs' application for a prejudgment remedy to attach certain settlement proceeds obtained by the defendant. We dismiss the appeal for lack of subject matter jurisdiction.

The facts relevant to our resolution of this appeal are undisputed.³ The case proceeded to trial in November 2006. On December 11, 2006, the plaintiffs filed an application for a prejudgment remedy pursuant to General Statutes § 52-278a that sought to enjoin the defendant from, inter alia, distributing proceeds recovered "from settlement or resolution of any ... litigation [involving Enron Power Marketing, Inc., a subsidiary of Enron Corporation (collectively Enron)]. ..." The defendant thereafter settled its malpractice actions against certain law firms that had represented it in connection with the Enron transaction, recovering approximately $37.6 million in settlement funds. Nevertheless, the court, on January 5, 2007, deferred consideration of the plaintiffs' application until the defendant both received the settlement funds and formally approved a plan for their use. The defendant agreed to hold the settlement funds in escrow upon their receipt, pending a determination by the court on the defendant's plan for disposition of the funds.

On February 2, 2007, the defendant filed a notice of the plan that the defendant's board of directors had approved for use of the settlement funds. That notice provided that while the defendant's board of directors intended to distribute a portion of the funds to the plaintiffs, the remainder would be used for other purposes. In response, the plaintiffs again filed an application for a prejudgment remedy, which averred that there was probable cause that a judgment in excess of $69.8 million would be rendered in their favor, thereby necessitating the attachment of all present and future proceeds received from "Enron recovery-related litigation. ..." After a hearing, the court made the following findings: "This court has had the benefit of listening to testimony over the period of several months. In addition, the court has reviewed hundreds of documents which have been marked as exhibits in the case. ... The court finds that there is probable cause to find that [the defendant] had a fiduciary relationship with the [plaintiffs]. The current president of [the defendant] and past presidents of the [defendant] have testified that they considered the relationship to be fiduciary in nature. There is also probable cause for the court to find that [the defendant] has engaged in an illegal loan and an ultravires transaction in making the Enron transaction. It has admitted these facts in the court documents. There is probable cause for the court to find that the plaintiffs were damaged by the illegal actions of [the defendant] through the increase in tipping fees and use of accumulated surpluses. There is also probable cause for the court to find that [the] plaintiffs have incurred or will incur damages in the amount of $69.8 million as a result of [the defendant's] actions. There is also probable cause for the court to find that the plaintiffs have established all of the essential elements of a constructive trust and that [the defendant] has breached its fiduciary duties to the [plaintiffs]. Further, there is probable cause for the court to find that [the defendant] has been unjustly enriched to the detriment of the [plaintiffs] by its actions." Accordingly, the court granted the application for a prejudgment remedy, ordering the attachment of present and future settlement proceeds and other funds in the defendant's reserve and operating accounts. From that judgment, the defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.

Approximately four months after the court granted the application for a prejudgment remedy, the court rendered judgment in favor of the plaintiffs on their underlying breach of contract and unjust enrichment claims in a memorandum of decision dated June 19, 2007. It awarded the plaintiffs equitable relief in the form of a constructive trust "on the moneys currently held" by the defendant in the amount of $35,873,732. The court further ordered that the trust forward those funds "to the [plaintiffs] immediately, in care of their trial attorneys, as restitution. ..."

On appeal, the defendant claims that the court improperly granted the plaintiffs' prejudgment remedy of attachment. It contends that chapter 903a of the General Statutes, which governs prejudgment remedies, does not allow for attachments against political subdivisions of the state. See General Statutes §§ 52-278a through 52-278n. The plaintiffs argue that the defendant's claim is moot because the attachment order expired upon issuance of the judgment on June 19, 2007.⁴ We agree with the plaintiffs.

"Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Giaimo v New Haven, 257 Conn. 481, 492-93, 778 A.2d 33 (2001). Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary. RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 680, 899 A.2d 586 (2006).

The defendant maintains that its claim is not moot, despite the expiration of the attachment order, because it falls within the capable of repetition, yet evading review exception to the mootness doctrine as enunciated in Loisel v. Rowe, 233 Conn. 370, 660 A.2d 323 (1995). To qualify for review under that exception, an otherwise moot question must meet three requirements. Id., at 382, 660 A.2d 323. "First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." Id., at 382-83, 660 A.2d 323. With those requirements in mind, we turn to the issue before us.

As we often have noted, "except insofar as the constitution bestows upon this court jurisdiction to hear certain cases ... the subject matter jurisdiction of the Appellate Court and of this court is governed by statute. ... It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review ... appellate jurisdiction is limited to final judgments of the trial court." (Citations omitted; internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 45, 818 A.2d 14 (2003). Thus, as a general matter, "an interlocutory ruling may not be appealed pending the final disposition of a case." Hopkins v. O'Connor, 282 Conn. 821, 827, 925 A.2d 1030 (2007). In specifically providing for certain interlocutory appeals, the legislature has carved exceptions to that rule. See, e.g., General Statutes § 54-63g (petition for review of bail); General Statutes § 51-164x (court closure orders).

General Statutes § 52-278l expressly permits appellate review of an interlocutory ruling granting a prejudgment remedy. Section 52-278l(a) provides in relevant part that an order granting a prejudgment remedy "shall be deemed a final judgment for purposes of appeal." Section 52-278l(b) requires the immediate commencement of such an appeal, providing that "[n]o such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken." In Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 765, 628 A.2d 1303 (1993), we concluded that the time limitation contained in § 52-278l(b) is subject matter jurisdictional in nature, and therefore is "mandatory and not waivable." As such, the statutory scheme invites expeditious review.

The defendant did not fully avail itself of the opportunity for such prompt review. After the court granted the plaintiffs' application...