Thornton v. Jacobs

• Citation: 339 Conn. 495,261 A.3d 738
• Decision Date: 02 July 2021
• Docket Number: SC 20457
• Parties: John L. THORNTON et al. v. Bradley JACOBS et al. Bradley Jacobs et al. v. John L. Thornton et al.
• Court: Supreme Court of Connecticut

339 Conn. 495

261 A.3d 738

John L. THORNTON et al.

v.Bradley JACOBS et al.

Bradley Jacobs et al.

v.John L. Thornton et al.

SC 20457

Supreme Court of Connecticut.

Argued February 19, 2021

Officially released July 2, 2021^*

Tadhg Dooley, New Haven, with whom were Jeffrey R. Babbin, New Haven, and, on the brief, James I. Glasser, New Haven, for the appellant (defendant Lamia Jacobs in the first case, plaintiff in the second case).

James J. McGuire, pro hac vice, with whom were Daniel J. Krisch, Hartford, and, on the brief, Joshua M. Auxier, for the appellees (plaintiffs in the first case, defendants in the second case).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

PER CURIAM.

This appeal stems from an underlying action being litigated in Florida by the plaintiffs in the present case, John L. Thornton and Margaret B. Thornton. The parties to the Florida action are the plaintiffs in the present case, who are the defendants and counterclaimants in the Florida action, and 100 Emerald Beach, LC, which is the plaintiff and counterclaim defendant in the Florida action. Lamia Jacobs, the defendant in the present case, is the sole owner of 100 Emerald Beach, LC, but is not named individually as a party in the Florida case. Jacobs and her husband, Bradley Jacobs, reside primarily in Connecticut. The Florida trial court ruled that it lacked personal jurisdiction to subpoena the defendant and Bradley Jacobs but granted the plaintiffs permission to seek to subpoena them in Connecticut. The plaintiffs served a subpoena to depose the defendant in Connecticut, and she filed a motion to quash in the Superior Court in Stamford, objecting to the subpoena.¹ She argued that the plaintiffs, instead of issuing a subpoena to her, should instead subpoena 100 Emerald Beach, LC, in order to obtain the information being sought. The trial court, Hon. Kenneth B. Povodator , judge trial referee, denied the motion to quash, and the defendant filed a timely appeal with the Appellate Court.

The plaintiffs moved in the Appellate Court for permission to file a late motion to dismiss, arguing that the appeal was frivolous. The defendant opposed the motion. The Appellate Court granted the motion to file an untimely motion to dismiss and, thereafter, without issuing an opinion, dismissed the appeal. The defendant filed a petition for certification to appeal to this court, which we granted on the following issue: "Did the Appellate Court properly dismiss, as frivolous, the appeal of a nonparty witness from the trial court's order enforcing a subpoena for an out-of-state lawsuit?" Thornton v. Jacobs , 334 Conn. 929, 224 A.3d 538 (2020). After we granted certification, the plaintiffs withdrew the subpoena they had sought to enforce against the defendant in Connecticut. In light of this withdrawal, we now dismiss this certified appeal as moot and vacate the judgment of the Appellate Court dismissing the defendant's appeal.

The following further facts and procedural background, which are based in part on the parties’ postargument filings with this court, inform our resolution of this appeal. In December, 2019, after the Appellate Court had dismissed the defendant's appeal but before we granted her petition for certification, the plaintiffs succeeded in serving her with a subpoena while she was visiting Florida.² On June 17, 2020, after this court granted certification to appeal but before the parties filed any briefs with this court, the plaintiffs withdrew the Connecticut subpoena as to the defendant without prejudice.³ We conclude that the plaintiffs’ withdrawal of their subpoena directed at the defendant renders this certified appeal moot. See State v. Charlotte Hungerford Hospital , 308 Conn. 140, 142, 60 A.3d 946 (2013) (defendant's appeal challenging trial court's order to comply with subpoena was rendered moot when plaintiff no longer sought to enforce subpoena after defendant settled underlying claim with third party); see also In re Grand Jury Proceedings , 574 F.2d 445, 446 (8th Cir. 1978) (holding that challenge to merits of court order directing party to comply with subpoena became moot when District Court granted issuing party's motion to withdraw subpoena); United States v. DiScala , Docket No. 14-cr-399 (ENV), 2018 WL 1187394, *1 n.6 (E.D.N.Y. March 6, 2018) ("The government moved to quash an earlier subpoena ... [that the defendant] withdrew. As a result, the government's motion to quash that subpoena is denied as moot." (Citation omitted.)); Cutsforth, Inc . v. Westinghouse Air Brake Technologies Corp ., Docket No. 12-cv-1200 (SRN/LIB), 2017 WL 11486322, *8 (D. Minn. March 15, 2017) ("because the [c]ourt has deemed the subpoenas at issue withdrawn pursuant to [the] [p]laintiff's representations to the [c]ourt, [the nonparty's] [m]otion [to quash] is moot").

The plaintiffs argue that this appeal is not moot because (1) they might seek to reissue the Connecticut subpoena if they cannot obtain the information they want through the Florida subpoena, (2) they might want to move for sanctions against the defendant for having filed a frivolous appeal, and (3) the underlying judgments may have collateral consequences in regard to their subpoena against Bradley Jacobs, which has not been withdrawn.

In regard to the plaintiffs’ argument that they may be unable to obtain all necessary information through the Florida subpoena, the plaintiffs’ potential desire to reissue the Connecticut subpoena does not save this appeal from being moot. It is the plaintiffs’ own unilateral actions that render this appeal moot; the defendant is not attempting to evade judicial review by her actions. See Boisvert v. Gavis , 332 Conn. 115, 139, 210 A.3d 1 (2019) (explaining that parties should not be able to evade judicial review by their unilateral, voluntary actions). Any need the plaintiffs might have to reissue the Connecticut subpoena is merely speculative at this point. See, e.g., United States v. Garde , 848 F.2d 1307, 1309–10 n.5 (D.C. Cir. 1988) (holding that appeal challenging order denying enforcement of subpoena was rendered moot when government was voluntarily provided certain information that satisfied relief it sought on appeal, and there were too many variables to determine whether government would seek another subpoena to procure related information).

Similarly, as to the plaintiffs’ fear that dismissing this appeal will deprive them of the ability to seek sanctions against the defendant, that consequence—if it is one—stems from their own action in withdrawing the Connecticut subpoena. The plaintiffs had their reasons for withdrawing that subpoena, which we do not question. But that action resulted in there no longer being a live case or controversy pending in this state regarding enforcement of a subpoena against the defendant in the Florida action, and we conclude that the plaintiffs’ potential desire to seek sanctions does not save this appeal from dismissal on the ground of mootness.⁴

Finally, as to the deposition of Bradley Jacobs, the plaintiffs appear to argue that there remain collateral consequences stemming from the underlying judgments, thereby saving the appeal from mootness. See, e.g., Putman v. Kennedy , 279 Conn. 162, 169, 900 A.2d 1256 (2006) ("despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur" (internal quotation marks omitted)). But not only is Bradley Jacobs not part of this appeal, the trial court never ruled on the subpoena served on him. Thus, our holding does not prevent the plaintiffs from taking further steps to seek to depose Bradley Jacobs in Connecticut.

Having decided that the plaintiffs’ withdrawal of the subpoena renders this appeal moot, we must determine whether vacatur of the underlying judgment is appropriate. We conclude that it is. This court previously has held that, when an appeal is dismissed...