Palmer v. Friendly Ice Cream Corp.

• Citation: 285 Conn. 462,940 A.2d 742
• Decision Date: 12 February 2008
• Docket Number: No. 17735.,17735.
• Court: Supreme Court of Connecticut
• Parties: Ellen PALMER et al. v. FRIENDLY ICE CREAM CORPORATION.

940 A.2d 742

285 Conn. 462

Ellen PALMER et al. v. FRIENDLY ICE CREAM CORPORATION.

No. 17735.

Supreme Court of Connecticut.

Argued September 5, 2007.

Decided February 12, 2008.

Deepak Gupta, pro hac vice, with whom were Daniel S. Blinn, Rocky Hill, Anthony J. Pantuso II, Hartford, and, on the brief, Brian Wolfman, pro hac vice, and Scott L. Nelson, pro hac vice, for the appellants (plaintiffs).

William C. Saturley, pro hac vice, with whom were Johanna G. Zelman and, on the brief, Michael J. Rose and Jeffrey A. Meyers, pro hac vice, for the appellee (defendant).

ROGERS, C.J., and KATZ, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

ZARELLA, J.

The sole issue raised by this appeal is whether an order denying class certification is an appealable final judgment. The plaintiffs,¹ thirty-seven persons employed as waiters or waitresses by the defendant, Friendly Ice Cream Corporation, appealed from the order of the trial court to the Appellate Court, which dismissed the appeal for lack of a final judgment. We granted the plaintiffs' petition for certification to appeal from the Appellate Court's judgment. The plaintiffs claim that a denial of class certification should be treated as a final judgment because such a denial meets the test for appealability of otherwise interlocutory orders. The plaintiffs claim that denial of class certification ends the claims of absentee plaintiffs and threatens rights they possess with respect to the class action. Because we conclude that the denial of class certification does not meet either prong of the Curcio² test, we affirm the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The plaintiffs filed a class action complaint against the defendant on October 4, 2004. The trial court, in its memorandum of decision, noted that the plaintiffs sought certification as a class to pursue their claims that the defendant had "failed to pay servers the hourly, minimum wage mandated by General Statutes § 31-60 because the defendant unlawfully deducted `tip credits' from servers' wages" for work that was "non-service" in nature. The putative class includes "all current or former servers" at the defendant's fortyeight restaurants in Connecticut "against whose wages tip credits were subtracted."

The plaintiffs' complaint arose from the defendant's alleged violation of § 31-62-E4 of the Regulations of Connecticut State Agencies, which governs the payment of minimum wage for "[d]iversified employment within the restaurant industry . . . ."³ The complaint alleges that the defendant "failed to definitely segregate all of the time spent performing `non-service' duties and nevertheless took a `tip credit' with respect to most of the hours worked by [the plaintiffs] and the class members and failed to compensate them at the required full minimum wage for their entire shift."

The trial court entered an order denying the plaintiffs' motion to certify the putative class on January 25, 2006. In its memorandum of decision, the court found that the plaintiffs had satisfied the requirements of numerosity commonality, typicality and adequate representation enumerated in Practice Book § 9-7. The trial court concluded, however, that the plaintiffs had failed to meet the predominance requirement for class certification under Practice Book § 9-8.⁴ Specifically, the trial court determined that the evidence required to prove liability as to each member of the class was so individualized that class-wide issues did not predominate. The court concluded: "Our law, as explicated by [Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 880 A.2d 106 (2005)], would demand evidence ... that each individual server of the proposed class performed specific, non-server duties during particular weeks within the pertinent time period.... The fact finder would need evidence as to each member of the class concerning what specific duties that member performed, and at what times, that required segregation before a tip credit was allowed."

The plaintiffs appealed to the. Appellate Court from the trial court's order denying the motion for class certification. The Appellate Court dismissed the appeal for lack of a final judgment. We granted certification to appeal from the judgment of the Appellate Court limited to the following issue: "Is an order denying a motion for class certification a final judgment for purposes of appeal?" Palmer v. Friendly Ice Cream Corp., 280 Conn. 918, 908 A.2d 537 (2006).

We begin by setting forth the standard of review. "The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise, plenary review]." (Internal quotation marks omitted.) Pritchard v. Pritchard, 281 Conn. 262, 270, 914 A.2d 1025 (2007).

We commence the discussion of our appellate jurisdiction by recognizing that there is no constitutional right to an appeal. E.g., Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965); State v. Figueroa, 22 Conn. App. 73, 75, 576 A.2d 553 (1990), cert. denied, 215 Conn. 814, 576 A.2d 544 (1990). Article fifth, § 1, of the Connecticut constitution provides for a Supreme Court, a Superior Court and such lower courts "as the general assembly shall . . . ordain and establish," and that "[t]he powers and jurisdiction of these courts shall be defined by law." (Emphasis added.) To consider the plaintiffs' claims, we must apply the law governing our appellate jurisdiction, which is statutory. State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The legislature has enacted General Statutes § 52-263,⁵ which limits the right of appeal to those appeals filed by aggrieved parties on issues of law from final judgments. Unless a specific right to appeal otherwise has been provided by statute, "we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim." (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 733-34, 818 A.2d 731 (2003); see also State v. Curcio, supra, at 30, 463 A.2d 566 (right of appeal "is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met"). Further, we have recognized that limiting appeals to final judgments "serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings." (Internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 225, 901 A.2d 1164 (2006). As it is relevant to this appeal, we note that the statute permitting class actions is silent regarding interlocutory appeals from a trial court's decision whether to certify a class. See generally General Statutes § 52-105.⁶

The plaintiffs claim that we should recognize that a denial of class certification satisfies the test for the appealability of an otherwise interlocutory order.⁷ This court has determined that certain interlocutory orders are to be treated as final judgments for purposes of appeal. To determine whether an order should be treated as such, we apply a twopronged test: "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, supra, 191 Conn. at 31, 463 A.2d 566. Unless an order can satisfy one of these two prongs, the lack of a final judgment "is a jurisdictional defect" that necessitates dismissal of the appeal. (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. at 734, 818 A.2d 731. Although an order that satisfies either prong will render it immediately appealable, the plaintiffs assert that the denial of class certification meets both prongs of the Curcio test. We disagree and analyze each prong respectively.

In order to satisfy the first prong of Curcio, the trial court's order must terminate a separate and distinct proceeding. State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. The plaintiffs claim that, "[b]ecause the order terminates the class action proceeding in its entirety and leaves only the named plaintiffs' individual actions, and because appeals from class certification decisions can proceed independently of litigation on the merits, the order is subject to immediate appeal." The defendant replies that a denial of class certification cannot satisfy the first prong of Curcio because it is not separate and distinct from the main action and because the determination of whether to certify a class directly impacts the litigation of the underlying action. We agree with the defendant.

Our case law defines the type of order that would terminate a separate and distinct proceeding and result in an immediate right to appeal. The judicial proceeding that triggers the appeal must be "independent of the main action." State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984). "The question to be asked is whether the main action could proceed independent[ly] of the ancillary proceeding." Id. A review of our prior cases reveals only a few examples of orders that we deem to terminate a separate and distinct proceeding, thereby satisfying the first prong of Curcio.

In Briggs v. McWeeny, 260 Conn. 296, 314, 796 A.2d 516 (2002), the plaintiff in error, Carole W. Briggs, brought a writ of error, challenging a trial court's order disqualifying her from appearing as an attorney on behalf of a school district in an action concerning damage to one of the school district's buildings. Id., at 306-307, 796 A.2d 516. The trial court found that Briggs had violated the Rules of Professional Conduct by...