Sharon Motor Lodge, Inc. v. Tai

• Decision Date: 23 March 2004
• Docket Number: (AC 23417).
• Citation: 82 Conn. App. 148,842 A.2d 1140
• Court: Connecticut Court of Appeals
• Parties: SHARON MOTOR LODGE, INC., ET AL. v. ALLAN Y. TAI.

82 Conn. App. 148

842 A.2d 1140

SHARON MOTOR LODGE, INC., ET AL. v. ALLAN Y. TAI.

(AC 23417).

Appellate Court of Connecticut.

Argued December 8, 2003.

Officially released March 23, 2004.

Foti, West and Dupont, Js.

William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and Zbigniew S. Rozbicki, for the appellants (plaintiffs).

Michael W. Coffey, for the appellee (defendant).

Opinion

DUPONT, J.

This is an appeal from the denial of the plaintiffs' motion for judgment in which the plaintiffs claimed that they were entitled to judgment due to mediation that allegedly resulted in a settlement of their underlying case in their favor for $365,000. After this appeal was filed, this court raised the question, on its own motion, of whether the appeal from the denial of the plaintiffs' motion should be dismissed for lack of a final judgment. Subsequently, we deferred action until oral argument on the issue of whether the matter should be dismissed because it was not a final judgment and ordered supplemental briefs on that issue. We conclude that the denial of the motion for judgment is not an appealable final judgment because it does not so conclude the rights of the parties such that no further action can affect them. We therefore dismiss the appeal.

The following facts and procedural history are relevant to our conclusion. The plaintiffs, Sharon Motor Lodge, Inc., and its two officers, Yoke Kiew Chow and her husband, Chia Peng Chiang, entered into a real estate transaction for the purchase of a motel and the accompanying property.¹ They hired the defendant, Allan Y. Tai, a member of the New York bar, to represent them in the transaction. On August 17, 1998, the motel allegedly sustained physical damage due to flooding. The plaintiffs filed a two count complaint against the defendant alleging "professional negligence" (legal malpractice) and fraud and misrepresentation, relating to the performance of his duties in representing the plaintiffs during the purchase of the motel. The plaintiffs alleged that the defendant had failed as their attorney to conduct a title search, including an inquiry into whether the property was located in a flood zone, had failed to recommend a professional inspection of the pool and septic system, and had failed to disclose that he was not a member of the Connecticut bar and that he was not knowledgeable in Connecticut real estate practice and procedure.

At the suggestion of the trial court, the parties signed an agreement to mediate the dispute. The mediator chosen was retired United States Magistrate F. Owen Eagan. The agreement to mediate stated that a representative from Chicago Insurance Company,² the defendant's malpractice insurance carrier, must attend with authority to settle. Two mediation sessions took place, on April 12 and May 23, 2001. The plaintiffs and their attorney attended both sessions. The defendant and his attorney of record attended the first mediation session; the defendant's attorney attended the second mediation session without the defendant. No claims representative of the insurer attended either session. According to the plaintiffs, the attorney for the defendant represented that he had authority to settle on behalf of the insurance carrier. That attorney's authority to represent the malpractice insurance carrier is disputed by the defendant on appeal.³ During the second mediation session, at which the plaintiffs, their attorney and the defendant's attorney were present, a settlement was allegedly reached. According to the plaintiffs, the defendant was to pay $10,000 (his deductible) and the balance would come from the Chicago Insurance Company.

On July 12, 2001, the plaintiffs filed a motion for judgment in the amount of $365,000 on the basis of the alleged settlement, plus interest at the rate of 10 percent. On August 20, 2001, the plaintiffs filed a motion for a determination of whether an agreement had been reached, citing General Statutes § 52-235d (b) (2), (3) and (4).⁴ Pursuant to the statute, they sought disclosure from the mediator of the results of the mediation. The motion for determination was granted by the court on December 3, 2001, by memorandum of decision, to the extent that the court allowed a set of interrogatories to be answered by the mediator. That set of interrogatories asked of the mediator whether the parties had reached a settlement and, if a settlement had been reached, the terms of the settlement. The interrogatories were answered by the mediator, indicating that the parties had reached a settlement, awarding the plaintiffs $365,000. An evidentiary hearing on the plaintiffs' motion for judgment was held on May 16, 2002, at which time the defendant argued that the mediator's understanding of the settlement must have been the result of some miscommunication to him from the plaintiffs. The defendant's attorney and a representative of the defendant's insurance carrier both denied that the parties had reached a settlement. On June 25, 2002, the plaintiffs filed a motion for an order, seeking to have the court order the testimony of the mediator. The court denied the motion on June 27, 2002, and denied the motion for judgment on July 25, 2002.

The court ruled, in denying the plaintiffs' motion for judgment, that on the basis of the evidence adduced at the May 16, 2002 hearing, there was disagreement over the terms of the alleged settlement and, further, disagreement as to whether any settlement was ever reached at all. The court, therefore, would not enforce the terms of the alleged settlement. This interlocutory appeal followed, challenging the court's denial of the motion for judgment.⁵

The subject matter jurisdiction of this court and our Supreme Court is limited by statute to final judgments. General Statutes § 52-263;⁶ see also, generally, W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2004 Ed.) § 61-1; see also C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 3.1 et seq. Some interlocutory actions of the trial courts, however, are immediately appealable because they are authorized by statute. For example, the legislature has granted authorization for appeals from prejudgment remedies; General Statutes § 52-278; and temporary injunctions in a labor dispute. See General Statutes § 31-118; see also W. Horton & K. Bartschi, supra, §§ 61-2 through 61-11. Other interlocutory rulings and orders of trial courts have been treated as final by the decisions of our appellate courts for purposes of asserting the right to immediate appellate review. In general, however, discovery orders or orders arising out of discovery orders are not immediately appealable.

The vast majority of interlocutory orders or rulings are not the proper subject of an appeal because they are not statutorily exempt from the final judgment rule and do not fit either of the prongs of the test set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Curcio is regarded as the landmark case in the refinement of final judgment jurisprudence. Shay v. Rossi, 253 Conn. 134, 165-67, 749 A.2d 1147 (2000). Under the test established in Curcio, interlocutory orders are immediately appealable in two circumstances. If an order or ruling (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them, an appellant is entitled to file an immediate appeal from the ruling or order. State v. Curcio, supra, 31. The plaintiffs claim that the second prong of Curcio entitles them to an immediate appeal.

In this case, the court denied the plaintiffs' motion for an order, filed pursuant to § 52-235d(b), to compel the testimony of the mediator, impliedly finding that "as a result of circumstances," it did not find "that the interest of justice outweighs the need for confidentiality" of the mediator's testimony. General Statutes § 52-235d (b) (4). Subsequently, the court denied the plaintiffs' motion for judgment. The issue, then, is whether the court's denial of the plaintiffs' motion for judgment, which was based on § 52-235d (b) (4), is an appealable final judgment, presently ripe for review. The issue is one of first impression. To resolve the issue, we are guided by Curcio and those cases that further explicate its thesis.

Curcio relied on principles asserted in State v. Kemp, 124 Conn. 639, 1 A.2d 761 (1938), authored by Chief Justice William M. Maltbie. Kemp held that the denial of a motion to inspect grand jury minutes was not immediately appealable. Kemp discusses the principle behind the second prong of Curcio to conclude that if, after the order, a party is still in court, with the case still open, with the possibility that judgment may still be rendered for or against it, the order is not final. Id., 641-42.

Curcio itself determined that the denial of the defendant's motion to quash an order for a second grand jury was not immediately appealable. The court reasoned that the denial had no present impact on the defendant's right to be free from double jeopardy and, therefore, the defendant had no colorable claim to a right of legal and practical value that would be destroyed if not vindicated before a future trial might be held. The colorable claim to the right was based on constitutional grounds. To succeed under the second prong of Curcio, the plaintiffs must "make at least a colorable claim that some recognized statutory or constitutional right is at risk." State v. Curcio, supra, 191 Conn. 34.

Curcio attempted to clarify the murky, amorphous area that lies between those appeals that are final judgments for purposes of interlocutory appellate review and those that are not by providing a rule to test the difference. Since Curcio, a number of cases have tested which side of the "`gray area'" the claimed right to interlocutory appellate review falls. See, e.g., Goodson v. State, 228 Conn. 106,...