Opinion
No. HHD CV-07-4028579-S
April 15, 2010
ORDER RE PLAINTIFF'S MOTION FOR DEFENDANT TO BE FOUND IN CONTEMPT AND FOR APPROPRIATE RELIEF (#138)
The plaintiff, Patricia Pryor, seeks an order that the defendant, Lilia Tavana, be found in civil contempt of court orders and the judgment in this matter for her failure to pay $5,000 to the receiver as set forth in the judgment. Although there is no dispute that the money has not been paid, the court declines to consider this motion for the reasons that the judgment on which the motion is based is on appeal and is subject to the stay provisions of Practice Book § 61-11.
In the judgment of the court dated October 30, 2009, the court ordered "that the $5,000 taken by the defendant and/or her agent from the LLC after the appointment of the receiver, in violation of a court order, is to be immediately returned to the receiver, said amount not being included by the court in defendant's 2007 draw." Memorandum of Decision, p. 8. On November 19, 2009 the defendant filed an appeal from the "Final judgment of October 30, 2009." Pursuant to Practice Book § 61-11: "Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause."
The plaintiff argues that the defendant did not appeal the part of the judgment regarding the $5,000 payment because it was not raised as an issue in the preliminary statement of issues filed with her appeal. Practice Book § 63-4(b) states that: "Except as otherwise provided, a party may as of right file amendments to the preliminary statement of issues or the designation of the pleadings in the trial court case file at any time until that party's brief is filed." The defendant has done so here and added the issue of the order of the payment of the $5,000 to her preliminary statement of issues. In any event, it is clear that the appeal was from the whole judgment, including the order that the defendant return the $5,000. Generally, in the absence of statutory authority, an appeal cannot be taken from only a part of a single judgment. Cronin v. Gager-Crawford Company, 128 Conn. 401, 403 (1941).
In addition, the plaintiff argues that the appeal does not stay the appointment of the receiver and, since this order is in furtherance of the receivership, it is not stayed. The plaintiffs cites Hartford Federal Savings and Loan Association v. Tucker, 192 Conn. 1 (1984), in support of her position. There the defendant argued that he could not be held in contempt of a rent receivership order when he was pursuing an appeal from the judgment of foreclosure in which he was contesting the validity of the receivership. The Court held that a receivership was similar to a prejudgment order and was not stayed pending an appeal from the foreclosure judgment. The Court concluded that "the trial court continued to have jurisdiction to enforce the receivership during the appeal of the underlying foreclosure to this court." Id., 7. This case is distinguishable from Tucker because the order sought to be enforced is part of the judgment and not a separate order. Nor does the contempt motion simply seek to enforce the receivership, which the Court in Tucker held, does not itself enforce or carry out the judgment, and therefore is not prohibited by the stay established by Practice Book § 61-11. The contempt motion, by its own terms, seeks to enforce the judgment. Even though the plaintiff also argues that she is seeking to enforce the receivership order, that argument appears to have already been considered by the trial court and addressed in the judgment. The court found that the $5,000 was taken by the defendant and/or her agent "after the appointment of the receiver, in violation of a court order."
This does not mean that the receivership does not continue pending the appeal or that the court cannot address other issues which may arise regarding the receivership during that time. As the court in Tucker held, the court has continuing jurisdiction to enforce a receivership during an appeal. Hartford Federal Savings and Loan Association v. Tucker, 192 Conn. 1, 7 (1984). "The purpose of a receivership, ordinarily, is to preserve and protect property pending the outcome of litigation." (Citations omitted.) Id.