Rosado v. Bridgeport Roman Catholic Diocesan Corp.

• Decision Date: 03 October 2000
• Docket Number: (AC 18669)
• Citation: 758 A.2d 916,60 Conn. App. 134
• Court: Connecticut Court of Appeals
• Parties: GEORGE L. ROSADO ET AL. v. BRIDGEPORT ROMAN CATHOLIC DIOCESAN CORPORATION ET AL.

60 Conn. App. 134

758 A.2d 916

GEORGE L. ROSADO ET AL. v. BRIDGEPORT ROMAN CATHOLIC DIOCESAN CORPORATION ET AL.

(AC 18669)

Appellate Court of Connecticut.

Argued April 24, 2000.

Officially released October 3, 2000.

Mihalakos, Zarella and Dupont, JS.

Mark R. Kravitz, with whom were Eileen R. Becker and, on the brief, Suzanne E. Wachsstock, for the appellants (proposed intervenors John Doe et al.). William F. Gallagher, with whom were Cindy L. Robinson and, on the brief, Barbara L. Cox and Frank A. Bailey, for the appellees (plaintiffs).

Opinion

DUPONT, J.

This is an appeal from the denial of the motion of seven priests to intervene in an action brought by the plaintiffs against the Bridgeport Roman Catholic Diocesan Corporation (Diocese) and others for damages for alleged sexual abuse by a particular priest when he was assigned to various churches within the Diocese.¹ The seven priests seek to intervene as of right or permissively for the limited purpose of arguing motions to quash, for a protective order and to prevent disclosure of private, confidential material contained in their personnel records.² The disclosure that the seven priests³ seek to protect relates to information about them contained in records in the possession of the defendants about "all complaints, accusations, allegations, reports and rumors concerning sexual misconduct, sexual abuse, sexual assault, inappropriate touching, inappropriate fondling, sexual overtures or any sexual impropriety or alleged impropriety...." The information was sought by subpoena, interrogatory and production requests directed to the Diocese. The issue is whether the seven priests should be allowed to intervene to protest the production of the records on the alleged grounds that the records are protected from disclosure by the United States constitution, the constitution of Connecticut, Connecticut statutes and the common law.⁴ The plaintiffs and the seven priests present compelling arguments for their different answers to this question.

The court denied the motion of the seven priests because "[i]t is not necessary for the movants to intervene, thereby becoming parties in the underlying action, in order to obtain the relief they seek. As nonparty persons to be deposed, they may be entitled to this relief under ... Practice Book § 13-27 and Practice Book ... § 13-28." Although it denied the motion, the court stated that it would "afford counsel a full hearing on the substantive issues" raised in the motions. A motion to quash was subsequently denied, but a motion to reargue that denial is still pending. The court also obtained the personnel files for review in camera, but has not yet reviewed them or decided what information, if any, should be disclosed to the plaintiffs. The court decided that it would take no action as to these matters while this appeal is pending. In addition, pursuant to a motion for review filed in this court, the plaintiffs are precluded from questioning the former bishop of Bridgeport about the seven priests. In other words, all discovery involving the seven priests has been stayed until this appeal has been decided. The stated purpose of the discovery requests was to determine whether or when the Diocese knew or should have known that some priests within the Diocese were engaging in improper sexual behavior. The amended complaint contains thirteen counts and seeks damages by twelve plaintiffs who allege that they were sexually harmed by one particular priest when they were minors. The amended complaint alleges negligent supervision of that priest and other priests by a bishop, a monsignor and the Diocese, and alleges harm arising from their failure to supervise the priests in the Diocese in a proper manner when they knew that priests within the Diocese were sexually abusing children.

The plaintiffs' principal argument is that the word "judgment" in Practice Book § 9-18⁵ should be read strictly to allow intervention only if a movant for intervention has an interest or title that the final judgment, as between the original litigants, will affect. The seven priests argue that Practice Book § 9-18 should not be read literally and that intervention should be allowed when there is a direct interest of a person at stake, not necessarily an interest in the final judgment to be rendered in the case. The seven priests rely on rule 24 of the Federal Rules of Civil Procedure⁶ for their argument that they should have been allowed to intervene as of right or, at the very least, permissively.

Connecticut procedure has not always clearly defined the distinction between permissive intervention and intervention as of right; Horton v. Meskill, 187 Conn. 187, 191-92, 445 A.2d 579 (1982); although rule 24 (a) and (b) of the Federal Rules of Civil Procedure has delineated the distinction. Practice Book § 9-18, formerly § 99, applies to intervention as of right, but the nature of that right has not always been fully articulated. "Where state precedent is lacking, it is appropriate to look to authorities under the comparable federal rule, in this case Rule 24 of the Federal Rules of Civil Procedure." Horton v. Meskill, supra, 192; see Washington Trust Co. v. Smith, 241 Conn. 734, 746, 699 A.2d 73 (1997).

The plaintiffs take the position that Practice Book § 9-18, if its exact wording is followed, would prohibit intervention as of right because it provides that an intervenor must have an "interest or title which the judgment will affect...." Because the eventual judgment in this case can directly affect only the plaintiffs and the defendants, the plaintiffs argue that the seven priests cannot intervene as of right. The seven priests contend that the word "judgment" should be more liberally construed as including those interlocutory decisions that are appealable as final judgments and that rule 24 is analogous to Practice Book § 9-18, with Connecticut cases approving the rule's use when Connecticut cases on point are lacking. We agree with the seven priests and conclude that General Statutes § 52-107, as tempered by rule 24 of the Federal Rules of Civil Procedure, is operative here.⁷

The precise issue to be resolved is whether intervention as of right to join a case in order to prevent an interlocutory discovery or production of documents that would directly affect a would-be intervenor exists when the final judgment in the case, resolving the dispute as between the primary litigants, would not affect the intervenor. This exact question has not been considered by an appellate court of Connecticut, although it has been considered and decided by at least one superior court, and frequently decided by federal district and federal circuit courts. Closely related questions have also been considered by Connecticut appellate courts.

Washington Trust Co. and other Connecticut appellate cases have often relied on rule 24 of the Federal Rules of Civil Procedure and have spoken approvingly of the rule. See Milford v. Local 1566, 200 Conn. 91, 94, 510 A.2d 177 (1986); Horton v. Meskill, supra, 187 Conn. 192; State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990).

Cases involving rule 24 (a) establish four requirements that an intervenor must show to obtain intervention as of right. The motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant's interest must be impaired by disposition of the litigation without the movant's involvement and the movant's interest must not be represented adequately by any party to the litigation. Washington Trust Co. v. Smith, 42 Conn. App. 330, 336-37, 680 A.2d 988 (1996), rev'd on other grounds, 241 Conn. 734, 699 A.2d 73 (1997); see also Edwards v. Houston, 78 F.3d 983, 999 (5th Cir. 1996) (en banc).

Before beginning our analysis of the four prongs of rule 24 (a), we discuss some general principles applicable to intervention as of right.⁸ If a would-be intervenor has a colorable claim to intervene as of right, the denial of the motion to intervene is appealable and is treated as a final judgment for purposes of an appeal. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990); Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.1, 435 A.2d 352 (1980); AIU Ins. Co. v. Brown, 42 Conn. App. 363, 367, 679 A.2d 983 (1996); Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985); see also Horton v. Meskill, supra, 187 Conn. 191-96.

In the present case, this court, prior to argument, determined that the seven priests had a colorable claim to intervene as of right. This court, therefore, denied the plaintiffs' motion to dismiss the appeal from that denial. The fact that a colorable claim exists does not ensure that upon a full scale, plenary review, it will be determined that the motion to intervene as of right should have been granted by the trial court. See Common Condominium Assns., Inc. v. Common Associates, supra, 5 Conn. App. 291. It does, however, lend support to the argument that Practice Book § 9-18 and General Statutes § 52-107, in providing that a person with an interest that the "judgment" will affect, intended to include an appealable interlocutory judgment in the word "judgment," not only the "end of the line judgment" disposing of the entire case.

If an interlocutory decision so concludes the rights of a party or a person as described in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), there has been an appealable judgment. McClendon v. Soos, 18 Conn. App. 614, 616, 559 A.2d 1163, cert. denied, 212 Conn. 808, 563 A.2d 1356 (1989). Our Supreme Court held in King v. Sultar, 253 Conn. 429, 435-36, 754 A.2d 782 (2000), that the denial of a motion to intervene filed by a person with a colorable claim to intervention as a matter of right is a final judgment for purposes of appeal and that the proposed intervenor is a "party" for purposes of ...