Presidential Capital Corp. v. Reale

• Citation: 692 A.2d 794,240 Conn. 623
• Decision Date: 29 April 1997
• Docket Number: No. 15406,15406
• Court: Connecticut Supreme Court
• Parties: PRESIDENTIAL CAPITAL CORPORATION, v. Antonio REALE.

Page 794

692 A.2d 794

240 Conn. 623

PRESIDENTIAL CAPITAL CORPORATION, v. Antonio REALE.

No. 15406.

Supreme Court of Connecticut.

Argued Dec. 6, 1996.

Decided April 29, 1997.

Kerry M. Wisser, West Hartford, with whom, on the brief, were Richard P. Weinstein and Nathan A. Schatz, for appellants (nonparty witnesses).

Julia B. Morris, Manchester, with whom was Michael D. O'Connell, for appellee (plaintiff).

Before CALLAHAN, C.J., and BERDON, NORCOTT, McDONALD and PETERS, JJ.

PETERS, Associate Justice.

The general rule established by our case law is that an interlocutory order requiring a witness to submit to discovery is not a final judgment and, therefore, is not immediately appealable. The sole question in this certified appeal is whether General Statutes § 52-351b ¹ provides a different rule, authorizing immediate appellate review, in the event of a trial court's denial of a protective order to shield a witness from discovery in statutory postjudgment proceedings.

In an action for breach of contract for failure to pay a commission, the plaintiff, Presidential Capital Corporation, obtained a judgment in the amount of $375,000 against the defendant, Antonio Reale. This court, in a previous appeal describing the controversy between these parties, sustained a jury verdict in the plaintiff's favor. Presidential Capital Corp. v. Reale, 231 Conn. 500, 652 A.2d 489 (1994). For present purposes, we note only that it is undisputed that the plaintiff has been unable to collect a significant portion of the judgment from the defendant.

The plaintiff has invoked § 52-351b in order to discover additional assets of the defendant. To facilitate such discovery, in September, 1995, it served postjudgment interrogatories pursuant to § 52-351b (a) upon the appellants, Nella Reale and Joseph Reale, the wife and the son of the defendant. In their answers to these interrogatories, the appellants indicated that neither of them was in possession of nonexempt personal property belonging to the defendant. Thereafter, pursuant to § 52-351b (c)(2), the plaintiff filed postjudgment discovery petitions with the trial court, in which it sought orders allowing it to examine the appellants before a judge of the Superior Court regarding the appellants' knowledge of undisclosed assets of the defendant that might be available to satisfy the plaintiff's money judgment. Pursuant to § 52-351b (d), the appellants then sought protective orders to preclude any such discovery proceedings. After a hearing on the appellants' motions, the trial court sustained the plaintiff's objection thereto and ordered the appellants to submit to an examination by the plaintiff to be conducted before the court.

The appellants appealed to the Appellate Court from the trial court's denial of their motions for protective orders. Concluding that the trial court had not rendered a final judgment, the Appellate Court dismissed the appeal. We granted the appellants' petition for certification to review the merits of that conclusion ² and now affirm the judgment of the Appellate Court.

The principles that govern appellate jurisdiction are well established. "[T]he subject matter jurisdiction of the Appellate Court and of this court is governed by statute. Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993). It is ... axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review; see, e.g., General Statutes § 52-278l (prejudgment remedies); General Statutes § 54-63g (petition for review of bail); General Statutes § 51-164x (court closure orders); State v. Ayala, 222 Conn. 331, 340, 610 A.2d 1162 (1992); appellate jurisdiction is limited to final judgments of the trial court. General Statutes § 52-263 ³...." Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994).

To determine whether a trial court's denial of protective orders pursuant to § 52-351b (d) is a final judgment, we look to the standards established in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). In Curcio, we held that "[a]n 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." Id., at 31, 463 A.2d 566. Because the appellants have raised no colorable claim that their appeal falls within the second prong of the Curcio test, ⁴ the only issue properly before us is whether the decision rendered by the trial court "terminate[d] a separate and distinct proceeding." We agree with the Appellate Court that it did not.

In the context of prejudgment orders, our case law firmly establishes that a witness in a trial court discovery proceeding is not entitled to immediate appellate review of a trial court's denial of a motion for a protective order. This result follows from the numerous decisions in which we have held that there is no right to an immediate appeal from an order issued upon a motion related to discovery. See, e.g., Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987); State v. Grotton, 180 Conn. 290, 292, 429 A.2d 871 (1980); Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980).

The appellants do not challenge the merits of this established case law but seek instead, on three grounds, to persuade us that their case is different. First, they claim that they are entitled to an immediate appeal because they are nonparties ⁵ to the underlying judgment and, therefore, will be deprived of the opportunity for later appellate review of allegedly improper discovery inquiries. Second, they claim that a trial court's order denying a protective order is immediately appealable because a trial court order granting a nonparty's motion for a protective order is immediately appealable. See Commissioner of Health Services v. Kadish, 17 Conn.App. 577, 554 A.2d 1097, cert. denied, 212 Conn. 806, 563 A.2d 1355 (1989) (reviewing order granting protective order). Third, they claim that, because § 52-351b expressly authorizes both postjudgment discovery and the issuance of a comprehensive protective order, the statute necessarily authorizes an immediate appeal, regardless of whether the trial court granted or denied the protective order. None of these arguments persuades us that the denial of a protective order with respect to postjudgment discovery, is, for appellate purposes, distinguishable from such an order with respect to prejudgment discovery. In Curcio terms, neither type of order "terminates" an ongoing judicial proceeding.

The appellants' argument that, because they are nonparty witnesses, they do not enjoy plenary appellate rights, articulates a concern that is shared by every witness who is reluctant to give testimony in a court of law. It is a given that, once disclosed through discovery, information cannot be retrieved. If that fact alone were sufficient to permit an immediate appeal of an order to comply with a discovery request or an order denying a protective order, every reluctant witness could delay trial court proceedings by taking an interlocutory appeal. That is not our law. See Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 255, 520 A.2d 605; Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., supra, 180 Conn. at 226, 429 A.2d 478.

Significantly, the rule disallowing an immediate appeal applies even if the witness invokes his or her constitutional right not to testify. See Barbato v. J. & M. Corp., 194 Conn. 245, 249, 478 A.2d 1020 (1984). In Barbato, we held that, if a witness asserts a privilege to withhold testimony to which the court and the parties may be entitled, and the court does not uphold that privilege, the witness's only access to appellate review is to appeal a finding of contempt. Id., at 250, 478 A.2d 1020. The scope of appellate review of such a contempt finding would be "sufficiently broad to encompass many claims of error which may not appear on their face to be jurisdictional in nature." (Internal quotation marks omitted.) Id., at 250-51, 478 A.2d 1020. Under Barbato, only a contempt finding, after refusal to respond to discovery, can properly be characterized as a final judgment. That path lies open to the appellants in this case.

In one exceptional case, as the appellants observe, we have nonetheless permitted an immediate appeal from the denial of a protective order relating to discovery. See Lougee v. Grinnell, 216 Conn. 483, 582 A.2d 456 (1990). In Lougee, a former employee of a party to a Texas lawsuit moved, in the trial court, to quash a subpoena to appear at a deposition in Connecticut. Id., at 485, 582 A.2d 456. Without a plenary discussion of conflicting precedents, we concluded that the trial court's denial of the former employee's motion constituted an appealable final judgment. Id., at 487, 582 A.2d 456. Lougee reflected the court's concern for the burdens potentially imposed on a nonparty witness called to respond to a discovery order arising out of a civil action that not only originated outside of Connecticut but could finally be resolved only outside of Connecticut. No such concerns are present in this case.

The appellants similarly cannot prevail on the ground that their rights are properly measured by the appellate consequences that would follow if the order of the trial court had been to grant, rather than to deny, their motion for a protective order. A trial court order that quashes an investigative subpoena indubitably "terminates" the discovery proceeding that is at issue. See Commissioner of Health Services v. Kadish, supra, 17 Conn.App. at 578 n. 1, 554 A.2d 1097. We have, accordingly, regularly undertaken appellate review of such an order. See, e.g., Heslin v. Connecticut Law Clinic of Trantolo &...