Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc.

429 A.2d 478, 180 Conn. 223, 1980 Conn. LEXIS 771

• Court: Supreme Court of Connecticut
• Decided: April 8, 1980
• Status: Published

Opinions

Peters, J.

This appeal arises out of an order imposing sanctions for failure to comply with a discovery order. The plaintiff, Chrysler Credit Corporation (hereinafter Chrysler Credit), sued the defendant Fairfield Chrysler-Plymouth, Inc. (hereinafter Fairfield) on a debt and a security interest in the form of a floor plan loan account. The defendant Morris Goldman was sued as garnishee of and assignee from the defendant Fairfield. Goldman moved to dismiss the complaint against him,¹ alleging lack of personal jurisdiction over him. When this motion was heard, the plaintiff requested and received a continuance to enable it to make an appropriate evidentiary showing. In an effort to acquire the relevant evidence, the plaintiff procured from the trial court a discovery order requiring the defendant to produce certain documents. Goldman objected to this order on the ground that he had not been properly served, and requested a protective order to limit the deposition to the issues raised in the prior motions to dismiss. The objection was overruled, and the protective order denied. Upon a subsequent notice of deposition, Goldman appeared but, upon advice of counsel, refused to produce any of the documents that Chrysler Credit had requested. The plaintiff then filed a motion for an order imposing sanctions upon Goldman for his refusal to comply with the duly filed notice of deposition. Upon a finding, after a hearing, that the discovery order had been disobeyed, the trial court, Ford, J., imposed upon the defendant Goldman the sanctions that are the subject of this appeal.

Before we address the merits of the several challenges to the mandate of the trial court, we must first clarify our own jurisdiction in the premises. Is the order of March 16, 1979, which imposes sanctions for noncompliance with the notice of deposition for discovery a final judgment which is presently appealable, or must appeal await disposition of the case as a whole? Although the plaintiff in its brief does not contest our jurisdiction, and the defendants urge it, jurisdiction cannot be conferred upon this court by the consent of the parties, or by waiver. Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974); Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961); Cone v. Darrow, 148 Conn. 109, 112, 167 A.2d 852 (1961). We must therefore determine the finality of the order of March 16, 1979, for the purposes of an immediate appeal. See General Statutes § 52-263.

An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions. See Kerite Co. v. Alpha Employment Agency, Inc., 166 Conn. 432, 436, 352 A.2d 288 (1974); Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 291-93, 320 A.2d 797 (1973). The question that must be decided is whether to create an exception to this general rule when the deposition order relates to a matter of jurisdiction over the person.

The procedures that govern adjudication of disputes concerning jurisdiction over the person, or territorial jurisdiction as it is now denominated in the Restatement (Second), Judgments §§7-13 (Tent. Draft No. 5, 1978),² are spelled out in our rules of practice. Such an issue is properly raised, as it was in this case, by a motion to dismiss. Practice Book, 1978, § 143. If decided adversely to the movant, further consideration of the matter is postponed until adjudication of the remaining issues in the case in chief. Upon appeal of the ease as a whole, error may be assigned with respect to the earlier adjudicated jurisdictional question. Practice Book, 1978, § 146. See General Statutes § 52-119.³ These rules replace the former practice of special and general appearances. In the usual ease, therefore, a contested decision that a party has been properly served with process would not be immediately appealable unless that party refused to plead further and a judgment of default were rendered. See James & Hazard, Civil Procedure (2d Ed. 1977) § 12.22.

The order of the trial court imposing sanctions for noncompliance with a duly filed notice of deposition was issued in support of the court’s authority to determine, in an orderly fashion, whether the defendants’ motion to dismiss should be granted or denied. A court must have jurisdiction to determine its own jurisdiction, especially where, as here, the defendants have by their appearance put that question into issue. A party in a civil action is permitted by our rules to take the testimony of any person, whether or not a party, by deposition. Practice Book, 1978, § 243 (formerly Practice Book, 1963, § 185). Under similar rules, the federal courts have permitted discovery to show whether a court has personal jurisdiction. See Budde v. LingTemco-Vought, Inc., 511 F.2d 1033, 1035 (10th Cir. 1975); H. L. Moore Drug Exchange, Inc. v. Smith, Kline & French Laboratories, 384 F.2d 97 (2d Cir. 1967); Moore, Federal Practice & Procedure § 30.52 (5) (2d Ed. 1978). Our rules specifically authorize, as one of the sanctions for noncompliance with a discovery order, the entry of an order that the matters regarding which the discovery was sought may be taken as established for the purposes of the action. Practice Book, 1978, § 231 (formerly Practice Book, 1963, §172).

The trial court determined that it had jurisdiction to proceed because of the defendant’s contumacions failure to cooperate with court-ordered discovery proceedings. That determination may have been correct or incorrect. In other circumstances, a trial court may correctly or incorrectly determine that a motion to dismiss on jurisdictional grounds should be denied. In either case, if there is error, the trial court’s action is reviewable upon appeal, pursuant to Practice Book, 1978, § 146, after a trial on the merits has been concluded and a final judgment has been rendered. At the present time, there is only an interlocutory order that is not yet appeal-able.

The appeal is therefore dismissed.

In this opinion Bogdanski and Pakskey, Js., concurred.

1 Both defendants also moved to dismiss the action against them on the ground of a prior pending suit between the parties involving the same issues. That motion has apparently not yet been adjudicated and is not at issue in the present appeal.

2 The term “territorial jurisdiction” is used in the Restatement to refer “to the connection between the territorial authority of the court and the action that has been brought before the court.” Restatement (Second), Judgments, Introductory Note to Chapter 2, p. 8 (Tent. Draft No. 5, 1978). Territorial jurisdiction includes jurisdiction in personam, in rem, or quasi in rem. Id., 9.

3 “[General Statutes] Sec. 52-119. pleading to be according to rules and orders op court. Parties failing to plead according to the rules and orders of the court may be nonsuited or defaulted, as the case may be.”

The statutory counterparts to Practice Book, 1978, § 146, General Statutes (Rev. to 1977) §§ 52-91 and 52-124 concerning pleas in abatement to the jurisdiction of the court, were repealed by Public Acts 1978, No. 78-379, §§ 19, 26.