Presidential Capital Corp. v. Reale

692 A.2d 794, 240 Conn. 623, 1997 Conn. LEXIS 114

• Court: Supreme Court of Connecticut
• Decided: April 29, 1997
• Docket: 15406
• Status: Published

Opinions

Opinion

PETERS, J.

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 § 52-351b¹ 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 plaintiffs 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 invoiced § 52-35lb 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 plaintiffs money judgment. Pursuant to § 52-35lb (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 plaintiffs 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 conclusion² 3and 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 § 52-2781 (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 § 52-263³ . . . .” 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 § 52-35lb (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., 31. 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 nonparties⁵ 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 non-party 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. 255; Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., supra, 180 Conn. 226.

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’ only access to appellate review is to appeal a finding of contempt. Id., 250. 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., 250-51. 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., 485. 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., 487. Lougee reflected the court’s concern for the burdens potentially imposed on a non-party 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. 578 n.1. We have, accordingly, regularly undertaken appellate review of such an order. See, e.g., Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); In re Application of Ajello v. Moffie, 179 Conn. 324, 426 A.2d 295 (1979). The finality that attaches to the quashing of a subpoena is not, however, transferable to an order that authorizes discovery to go forward. The opposite conclusion would be inconsistent with our final judgment decisions in related areas. We have never held, for example, that, because the granting of a motion for summary judgment is immediately appealable, the denial of such a motion is equally appealable. See Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n.12, 596 A.2d 414 (1991) (denial of summary judgment motion not immediately appealable).

The appellants’ argument finally comes down to a question of statutory construction. The inclusion in § 52-35 lb (d) of an opportunity to request a protective order prior to submitting to discovery does not signal a legislative intent that the denial of such an order constitutes a final judgment. When the legislature has intended such a consequence in the context of postjudgment remedies, it has expressly so specified in the relevant text. See General Statutes §§ 52-362 (e) and 52-367b (i). It is reasonable to interpret the reference to a protective order in § 52-35lb (d) as a manifestation of legislative intent to provide for a witness in a post-judgment discovery proceeding the same opportunity to bypass discovery as is available to a witness in a prejudgment discovery proceeding. In the latter case, although protective orders may be sought, their denial is not immediately appealable. See Barbato v. J. & M. Corp., supra, 194 Conn. 249; see also North Carolina Assn. of Black Lawyers v. North Carolina Board of Law Examiners, 538 F.2d 547, 548 (4th Cir. 1976) (refusal of district court to issue a protective order under Federal Rule of Civil Procedure 26 [c] not an appealable final judgment).

Considerations of policy support this construction of the statute. We recognize that all nonparty witnesses would prefer to appeal immediately rather than to run the risk of being found in contempt of court for failure to provide information to which the court and the parties arguably may not be entitled. There is no reason to believe, however, that the legislature intended § 52-35lb (d) to afford nonparty witnesses, such as the appellants, more rights to appellate review than is normally afforded to others similarly situated.⁶ The primary purpose of § 52-35lb is, after all, to assist creditors in obtaining information concerning assets concealed by their judgment debtors. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1983 Sess., p. 1171, remarks of Raphael Podolsky (“[This bill] sets up some new systems for . . . gathering information from third parties. I think those systems are good. They are desirable.”). That primary purpose would not be advanced by interposing into postjudgment discovery proceedings the expense and the delay inevitably associated with the appellate process. More generally, we may presume that the legislature is cognizant of the limited resources available to the judicial branch and of the legislative role in the allocation of trial and appellate resources within the judicial branch. Without express provision for an immediate right of appeal, the legislature presumably did not intend to impose upon Connecticut’s courts the significant burden that would be associated with unlimited appellate review of trial court orders denying protective orders to nonparty witnesses.

We conclude, therefore, that although § 52-351b creates a proceeding that is separate and distinct from the prior adjudication leading to the judgment debt, the denial of a protective order pursuant to § 52-35lb (d) does not terminate this statutory proceeding. The trial court has yet to consider what requests for information, if any, it will direct the appellants to answer. The appellants have yet to decide what information, if any, they are unwilling or unable to provide. At this juncture, appellate review of the controversy between the plaintiff and the appellants is premature.

The judgment of the Appellate Court is affirmed.

In this opinion CALLAHAN, C. J., and MCDONALD, J., concurred.

1 General Statutes § 52-35lb provides in relevant part: “Discovery by judgment creditor, (a) A judgment creditor may obtain discovery from the judgment debtor, or from any third person he reasonably believes, in good faith, may have assets of the judgment debtor, or from any financial institution to the extent provided by this section, of any matters relevant to satisfaction of the money judgment. The judgment creditor shall commence any discovery proceeding by serving an initial set of interrogatories, in a prescribed form containing such questions as to the assets and employment of the judgment debtor as may be approved by the judges of the Superior Court or their designee, on the person from whom discovery is sought.. . .Questions contained in the interrogatory form shall be in clear and simple language and shall be placed on the page in such manner as to leave space under each question for the person served to insert his answer. Such person shall answer the interrogatories and return them to the judgment creditor within thirty days of the date of service. . . . With respect to assets, the person served is required to reveal information concerning the amount, nature and location of the judgment debtor’s nonexempt assets up to an amount clearly sufficient in value to ensure full satisfaction of the judgment with interest and costs, provided disclosure shall be first required as to assets subject to levy or foreclosure within the state. . . .

“(c) On failure of a person served with interrogatories to, within the thirty days, return a sufficient answer or disclose sufficient assets for execution, or on objection by such person to the interrogatories, the judgment creditor may move the court for such supplemental discovery orders as may be necessary to ensure disclosure including (1) an order for compliance with the interrogatories or authorizing additional interrogatories and (2) an order for production or for examination of the judgment debtor or third person, provided any such examination shall be conducted before the court. The court may order such discovery as justice requires provided the order shall contain a notice that failure to comply therewith may subject the person served to being held in contempt of court.

“(d) Any party from whom discovery is sought may seek a protective order pursuant to section 52-400a.”

General Statutes § 52-400a, in turn, provides in relevant part: “Protective order by court. ... (a) On motion of a . . . third person from whom discovery is sought, and for good cause shown, or on its own motion, the court may make any order which justice requires to protect such debtor or third person from annoyance, embarrassment, oppression or undue burden or expense. . . .”

2 We granted certification, limited to the following issue: “If, in postjudgmcnt proceedings, a judgment creditor seeks to examine nonparties to discover undisclosed assets of its judgment debtor, must an appeal by the nonparties from a trial court order denying their motions for protective orders be dismissed for lack of a final judgment?” Presidential Capital Corp. v. Reale, 237 Conn. 901, 902, 674 A.2d 1331 (1996).

3 General Statutes § 52-263 provides: “Appeals from Superior Court. Exceptions. Upon the trial of all matters of fact in any cause or action m the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

4 The appellants do make a belated attempt to invoke the second prong of the Curcio test in their reply brief. We have, however, on a number of occasions observed “that arguments cannot be raised for the first time in a reply brief.” Saturn Construction Co. v. Premium Roofing Co., 238 Conn. 293, 312 n.14, 680 A.2d 1274 (1996). Application of this rule in the present case does no injustice to the appellants, whose eonclusory arguments under the second prong of Curcio substantially replicate their lengthier arguments under the first prong. Under these circumstances, it is unnecessary for us to undertake a separate and distinct analysis where the appellants themselves have chosen not to do so.

5 In their briefs in this court, the appellants have consistently referred to themselves as nonparties. Although they were not parties to the underlying civil action, it is altogether possible that, for some purposes, they may be considered parties to the § 52-351b postjudgment proceeding. Because nothing in the present appeal turns on a choice of nomenclature, we have adopted the appellants’ own usage throughout this opinion.

6 At oral argument, the appellants contended that they were entitled, under § 52-351b, to an evidentiary hearing prior to the trial court’s decision on their motion for a protective order. Under tire circumstances of this case, we need not decide whether the text of § 52-35lb can support this argument. As a procedural matter, the appellants conceded that they had failed to request such a hearing before the trial court. As a substantive matter, our resolution of the certified issue in this case does not turn on the amount of information the trial court considered before denying the motion for a protective order. The evidentiary basis for the trial court’s decision goes to its propriety, not to its finality.