68 Conn. App. 707 | Conn. App. Ct. | 2002
Opinion
The plaintiffs appeal from the trial court’s order sustaining the defendant’s objection to the acceptance of the attorney trial referee’s report and revoking the reference to the referee. The defendant has filed a motion to dismiss the appeal on the ground that the order is not an appealable final judgment. We agree that the appeal is premature and grant the defendant’s motion to dismiss.
On April 6,1998, the plaintiffs, Enia Douglas-Mellers, Cynthia Reynolds and Sasha Hart, were involved in an
On November 9, 2001, the plaintiffs filed an appeal from the court’s order rejecting the attorney trial referee’s report and revoking the reference to the referee. The defendant subsequently filed a motion to dismiss the appeal for lack of a final judgment. The sole issue now before us is whether an order of the trial court revoking the reference to an attorney trial referee and leaving the case to be disposed of in the trial court can be immediately appealed.
As a preliminary matter, we must first examine the procedures that govern matters heard by attorney trial referees as set forth in chapter nineteen of our rules of practice. Upon the consent of the appearing parties, the court may refer a nonjury case to an attorney trial
The plaintiffs in the present case cite In re Application of Clinton Oyster Ground Committee, 52 Conn. 5 (1884), for the proposition that the revocation of the reference to the attorney trial referee is an appealable final judgment. In that case, the oyster ground committee of the town of Clinton, pursuant to statute, filed an application in the court for the appointment of an independent committee to ascertain and describe the boundaries of the natural oyster, clam and mussel beds in the waters of the town.
The plaintiffs’ reliance on In re Application of Clinton Oyster Ground Committee is misplaced. The decision of the court that it “was deemed best to hear it on its merits”; id., 7; appears to have been driven by the exigent circumstances surrounding the economic and political considerations that underlie the court’s scathing characterization of the committee’s actions as “irresponsible” and influenced “by local jealousies and prejudices” in its impassioned discussion of the merits of the case. Id., 7-10. The determination that there was a final judgment in In re Application of Clinton Oyster Ground Committee should, therefore, be limited to its unique facts, which the court itself referred to as exceptional, and should not be precedent for a final judgment analysis in cases involving the modem attorney trial referee process. Rather than fitting into the exception created to reach the merits in In re Application of Clinton Oyster Ground Committee, this case is more analogous to Cothren v. Atwood, 63 Conn. 576, 29 A. 13 (1894). In Cothren, an appeal was taken from an order sustaining a remonstrance and rejecting the report of a committee in an action on a debt. Our
In OCI Mortgage Corp. v. Marchese, 48 Conn. App. 750, 754, 712 A.2d 449 (1998), another appeal involving the attorney trial referee process, we also distinguished our Supreme Court’s holding in In re Application of Clinton Oyster Ground Committee. In Marchese, the defendant property owners in a foreclosure action appealed from the court’s order sustaining the plaintiffs objection to the acceptance of the attorney trial referee’s report. Id., 750. The court, in sustaining the plaintiffs objection, remanded the case to the same attorney trial referee to “ ‘proceed in a manner not inconsistent with’ ” the trial court’s decision. Id., 752. The plaintiff filed a motion to dismiss the appeal on the ground that the court’s order was not a final judgment. Id., 751-52. In granting the motion to dismiss, we distinguished In re Application of Clinton Oyster Ground Committee, explaining that “[a] party cannot appeal from a trial court’s order sustaining an objection to an attorney trial referee’s report, but rather must appeal from the judgment that is rendered thereon. . . . Here, the trial court has not yet rendered judgment. It has simply remanded the case to the attorney trial referee for further proceedings. Accordingly, there is no judgment from which the defendants may appeal.” (Citations omitted; emphasis in original.) Id., 754. Similarly, in the present case, by revoking the reference to the attorney trial referee, the court has not yet rendered any judg
The court’s order revoking the reference to the referee also fails to meet the requirements set forth in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), in which our Supreme Court promulgated a test to determine whether certain otherwise interlocutory orders may constitute final judgments for purposes of appeal. In Curcio, the court stated 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. The first prong of Curcio “requires the order being appealed to be severable from the central cause to which it is related so that the main action can proceed independent of the ancillary proceeding.” (Internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 65, 658 A.2d 947 (1995), on appeal after remand, 235 Conn. 671, 669 A.2d 573 (1996). Applied to the present case, the first prong is inapplicable because the attorney trial referee process is a fact-finding extension of the arm of the court that is not severable from the main proceeding. See OCI Mortgage Corp. v. Marchese, supra, 48 Conn. App. 754-55.
The court’s order also fails to meet the requirements of the second prong of Curcio. The focus in that part of the inquiry is “not on the proceeding involved, but on the potential harm to the appellant’s rights.” State v. Curcio, supra, 191 Conn. 33. “It requires the parties seeking to appeal to establish that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may
Accordingly, we conclude that there is no final judgment in this case. As a result, we lack jurisdiction over this appeal.
The defendant’s motion to dismiss the appeal is granted.
In this opinion the other judges concurred.
The defendant objected to the report on the ground that it was not based on the evidence introduced at trial.
“Once the parties consent to the use of an attorney trial referee, however, it is implicit that the parties must then submit to the entire process set forth in [Practice Book §§ 19-1 through 19-18]. A party cannot later opt out of the process should the attorney trial referee’s report prove to be unfavorable. Only the trial court can abort the process by revoking the referral to the attorney trial referee.” OCI Mortgage Corp. v. Marchese, 48 Conn. App. 750, 753, 712 A.2d 449 (1998).
The process was governed by Public Acts 1881, c. 140, § 12, p. 104, codified as § 2326 of the General Statutes of 1888, which provides in relevant part: “The Superior Court of New Haven County, on the application of the selectmen of the town of Orange, and the Superior Court of any county, on the application of the oyster-ground committee of any town in said county, shall appoint a committee of three disinterested persons, not residents of