(15406)

Argued December 6, 1996

Action, in two counts, to recover damages for, inter alia, breach of contract, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the defendant's motion to bifurcate the trial was granted by the court, Allen, J.; thereafter, the matter was tried to the jury before Allen, J., on the breach of contract count only; verdict for the plaintiff; subsequently, the court denied the defendant's motion for judgment notwithstanding the verdict, granted the defendant's motion for a remittitur and rendered a partial judgment for the plaintiff reducing the jury's award of damages and the defendant appealed and the plaintiff cross appealed; on appeal, this court reversed in part the trial court's judgment and remanded the case with direction to render judgment for the plaintiff in accordance with the jury's original verdict; thereafter, the court, Aurigemma, J., sustained the objection by the plaintiff to motions for protective orders filed by two nonparty witnesses to prevent the plaintiff from conducting examinations of them concerning assets of the defendant, from which the nonparty witnesses appealed to the Appellate Court, which granted the plaintiff's motion to dismiss for lack of a final judgment, and the nonparty witnesses, on the granting of certification, appealed to this court. Affirmed.

Opinion

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 § 52-351b 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 plaintiff's 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 invoked § 52-351b 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 plaintiff's money judgment. Pursuant to § 52-351b (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 plaintiff's 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 conclusion and 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 § 52-278 l (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 § 52-263 . . . ." 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 § 52-351b (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, 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 nonparties 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 nonparty 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's 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 nonparty 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 § 52-351b (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 § 52-351b (d) as a manifestation of legislative intent to provide for a witness in a postjudgment 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 § 52-351b (d) to afford nonparty witnesses, such as the appellants, more rights to appellate review than is normally afforded to others similarly situated. The primary purpose of § 52-351b 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 § 52-351b (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.

With whom, NORCOTT, J., joins.

I disagree with the majority's dismissal of this appeal for lack of a final judgment, where the appellants seek appellate review of what they argue was the trial court's improper denial of their statutory right to a protective order from an intrusive, and potentially abusive, examination by the plaintiff. Pursuant to General Statutes § 52-351b, and General Statutes § 52-400a (a), a specific postjudgment statutory scheme, the appellants, Nella Reale and Joseph Reale, each sought protective orders to prevent them from having to shoulder the burden of being haled into court for an examination with respect to the assets of the defendant Antonio Reale, the judgment debtor. Although the appellants are the wife and son of the defendant, neither are parties to the underlying action nor are they indebted to the plaintiff.

In this case, the examination of the appellants was not a matter of right, but, rather, was subject to a separate and distinct proceeding in which the trial court was required to determine whether the appellants should be subject to an examination by the plaintiff or were entitled to have an order issued to protect them from "annoyance, embarrassment, oppression or undue burden or expense." General Statutes § 52-400a (a). For purposes of an appeal from an order such as the trial court entered in this case denying the appellant's motions for protective orders, State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), provides the standard to determine whether it constituted a final judgment. 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. In my opinion this case meets the test of the first prong of Curcio. The trial court's denial of the motions for protective orders, which resulted in requiring the appellants to submit to the examinations, constituted a final judgment under Curcio because it was instigated solely to test the propriety of their examination by the plaintiff in a proceeding independent of the central action against the defendant. Even the majority concludes that the statutory proceeding "is separate and distinct from the prior adjudication leading to the judgment debt . . . ."

I agree that this court has long held that a pretrial order directed to a party pertaining to discovery is generally not appealable. See, e.g., Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980) ("[a]n order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment"). This court pointed out in Chrysler Credit Corp. that if the trial court in such cases improperly orders discovery, then the issue "is reviewable upon appeal . . . after a trial on the merits has been concluded and a final judgment has been rendered." Id., 228.

The order challenged in this case differs from such pretrial orders as in Chrysler Credit Corp. in at least one important respect. The discovery authorized in the present case was predicated upon a special statutory proceeding that enabled the appellants, who were not parties to the underlying action, to challenge the appropriateness of allowing the plaintiff to obtain discovery from them in a proceeding that would not result in a later judgment from which the appellants could then appeal. Accordingly, we are not bound by the precedent of Chrysler Credit Corp., and the trial court's order of discovery comes within the first prong of Curcio.

The case of Lougee v. Grinnell, 216 Conn. 483, 582 A.2d 456 (1990), is indistinguishable from the case now before us. In Lougee, the Superior Court denied the petitioner's motion to quash a subpoena and his application for a protective order with respect to a deposition the respondent sought of the petitioner pertaining to a civil action pending in Texas, in which the respondent was the plaintiff. Id., 484-86. In holding that the discovery order was appealable under the first prong of Curcio, this court stated that the "judicial proceeding instituted in Connecticut concerned the propriety of [the respondent's] deposition subpoena, a proceeding that will not result in a later judgment from which [the petitioner] can then appeal." (Internal quotation marks omitted.) Id., 487. The court concluded that "[b]ecause the separate and distinct judicial proceeding concerning [the respondent's] deposition subpoena terminated when the trial court issued the orders appealed, [the petitioner] has appealed from a final judgment . . . ." Id. This court then reviewed the merits of the petitioner's claims that the Superior Court improperly denied his motion to quash the subpoena and motion for protective order. Id., 487-91. The majority, labeling Lougee as an "exceptional" case, is quick to dismiss this court's precedent.

I make three preliminary observations with respect to Lougee and the present case: (1) the petitioner in Lougee was a nonparty witness, and the appellants in this case were also nonparty witnesses; (2) the petitioner in Lougee was called to respond to discovery, and the appellants in this case were also called to respond to discovery; (3) the litigation was initiated outside of Connecticut in Lougee, but, as the majority points out, this case involves Connecticut litigation. The majority relies on the latter distinction to distinguish Lougee from the present case, but its relevancy eludes me. The concerns that the majority claim were present in Lougee are no different than the concerns in this case. The appellants in this case, as well as the petitioner in Lougee, were subject to discovery proceedings in Connecticut. More importantly, the legislature has clearly drawn the lines of a distinct proceeding by providing a statutory framework applicable in this case in which the appellants can initiate a separate proceeding in order to challenge the propriety of subjecting them to a probing examination. No such legislative framework was provided in Lougee. Because the majority embraces Lougee and rejects jurisdiction in this case, I can only conclude that the majority's decision is result-oriented.

Like the denial of the motion to quash in Lougee, the denial of the motions for protective orders in this case determined whether the appellants were required to submit to the discovery, and this concluded the rights of the parties. In other words, the denial of the motions for protective orders was determinative of whether the discovery would annoy, embarrass, oppress or cause undue burden or expense to the appellants. General Statutes § 52-400a (a). The majority suggests that if the appellants wish to test the propriety of the trial court's decision, they must subject themselves to a finding of contempt of court and punishment for that contempt by refusing to answer. The legislature never intended that parties such as the appellants place themselves in a position of being held in contempt of court and punished with the possibility of imprisonment. The contempt route is a callous suggestion to the appellants in order for them to vindicate their privacy rights.

The majority has relegated the shield provided by the statutory scheme to an unreviewable decision of the trial court. The trial court's decision is insulated from review because once the appellants are compelled to submit to the discovery proceedings — being forced to enter the door of the courthouse, take the witness stand, and relinquish their right to privacy — any subsequent appeal to contest the propriety of that examination would be moot.

Accordingly, I dissent.

Officially released April 29, 1997