REDDING LIFE CARE, LLC v. TOWN OF REDDING
(SC 20054)
Supreme Court of Connecticut
Argued November 14, 2018—officially released May 21, 2019
331 Conn. 711
Robinson, C. J., and Palmer, D‘Auria, Ecker and Lavine, Js.
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Pursuant to this court‘s decision in State v. Curcio (191 Conn. 27), an interlocutory court order or ruling may be immediately appealable if the order or ruling either terminates a separate and distinct proceeding, or so concludes the rights of the parties that further proceedings cannot affect them.
The plaintiff in error, S, filed a writ of error, seeking review of the trial court‘s denial of his motion for a protective order in connection with the issuance of a subpoena compelling him to appear at a deposition. S had appraised certain real property that was the subject of a tax appeal. The appraisals had been performed prior to and independently of the tax appeal, to which S was not a party. During the pendency of the tax appeal, the defendant in error, the town of Redding, which was defending the tax appeal, served S with a subpoena compelling him to appear at a deposition in Florida, where S resided at that time. S filed the motion for a protective order in the trial court, seeking to prohibit the taking of the deposition. In support of his motion, S contended that he had not been retained by either party in the tax appeal, did not have any relevant knowledge, and could not be compelled to testify as an expert because Connecticut law prohibited the compulsion of testimony from an unretained expert. In denying S‘s motion, the trial court ordered the deposition to proceed. After S filed his writ of error with this court, the town filed a motion to dismiss the writ of error for lack of subject matter jurisdiction on the ground that the trial court‘s order was not a final judgment. This court then transferred the writ to the Appellate Court, which denied the town‘s motion to dismiss. The Appellate Court ultimately granted the writ of error, basing its decision on the creation of a new, qualified testimonial privilege for unretained expert witnesses. The Appellate Court remanded the case to the trial court with direction to vacate its order denying the motion for a protective order and for a determination as to whether S‘s proposed deposition testimony was barred under that privilege. The town thereafter filed a petition for certification to appeal from the Appellate Court‘s judgment, which this court granted. Held:
1. Contrary to S‘s claim, this court had subject matter jurisdiction to grant the town‘s petition for certification to appeal from the Appellate Court‘s judgment on the writ of error: subsections (a) and (b) of the statute (
2. The Appellate Court lacked subject matter jurisdiction over the writ of error because writs of error may be brought only from final judgments and the trial court‘s interlocutory order directing the deposition of S to proceed did not constitute an appealable final judgment under Curcio: the trial court‘s discovery order did not terminate a separate and distinct proceeding because that order was not sufficiently definite, specific or comprehensive, as the court, in issuing its order, did not rule on any specific questions the parties would ask of S at the deposition, and, insofar as those specific questions were unknown, it could not be determined whether any privilege would apply to S‘s prospective deposition testimony; moreover, S could not prevail on his claim that there could be no further proceedings before the trial court that could affect him, as he could be held in contempt by a Connecticut court for failing to comply with the subpoena because he sought a protective order from the Connecticut Superior Court and the discovery order was the byproduct of his having sought aid from the Connecticut court system, and requiring S to appeal from a contempt order did not violate justice or public policy but, rather, ensured that there would be a live controversy in which his legally protected interest has been adversely affected; accordingly, the Appellate Court‘s judgment was reversed and the case was remanded with direction to dismiss S‘s writ of error.
Argued November 14, 2018—officially released May 21, 2019
Procedural History
Writ of error from an order of the Superior Court in the judicial district of New Britain, Schuman, J., denying a motion for a protective order filed by the plaintiff in error, brought to this court, which transferred the matter to the Appellate Court, DiPentima, C. J., and Prescott and Beach, Js.; judgment granting the writ of error and remanding the case to the trial court for further proceedings, from which the defendant in error, on the granting of certification, appealed to this court. Reversed; judgment directed.
Elliott B. Pollack, with whom were Michael J. Marafito and, on the brief, Johanna S. Katz, for the defendant in error (town of Redding).
Proloy K. Das, with whom were Robert E. Kaelin and, on the brief, Melissa A. Federico, for the plaintiff in error (David R. Salinas).
James J. Healy filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
Michael R. McPherson filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.
Roderick R. Williams, deputy corporation counsel, filed a brief for the city of New Haven as amicus curiae.
D‘AURIA, J. In this certified appeal, we are asked to determine whether there exists either an absolute or qualified testimonial privilege for an unretained expert who previously has rendered an opinion relevant to the issues in a pending case. The defendant in error, the town of Redding (town), appeals from the judgment of the Appellate Court, which granted the writ of error filed by the plaintiff in error, David R. Salinas. In granting the writ, the Appellate Court vacated the trial court‘s order denying his motion for a protective order that sought to prohibit the town from taking his deposition and ordered the trial court to determine whether Salinas’ testimony was privileged under the new, qualified unretained expert privilege that the Appellate Court announced. To reach this issue, however, this court must overcome two jurisdictional hurdles: (1) whether this court has jurisdiction to grant certification to appeal from the Appellate Court‘s determination of a writ of error, and (2) whether the trial court‘s ruling constituted an appealable final judgment. Although we determine that we have jurisdiction to grant certification, we nevertheless determine that there was no appealable final judgment.1 Accordingly, we reverse the judgment of the Appellate Court and direct that court on remand to dismiss the writ of error for lack of a final judgment.
The following undisputed facts and procedural history are relevant to our review of these claims. In October, 2012, the town assessed real property owned by Redding Life Care, LLC (Redding Life). As a result of that assessment, Redding Life initiated an action against the town to challenge the assessed value of the property (tax appeal). Prior to the initiation of that action, in 2010 and 2011, Salinas had completed two appraisals of that property on behalf of CapitalSource Bank (bank), a nonparty to the tax appeal, as part of the underwriting process for extending a loan to Redding Life in 2011. In July, 2014, after learning about and obtaining copies of these appraisals through the pretrial discovery process, the town filed a motion for a commission to depose Salinas, who resided in Florida. Redding Life and the bank objected. The trial court, Hon. Arnold W. Aronson, judge trial referee, granted the town‘s motion.
Subsequently, the town served Salinas with a subpoena compelling him to appear at a deposition scheduled for January, 2015, in Florida. Salinas filed a motion for a protective order in the Connecticut Superior Court seeking to prohibit the town from taking his deposition. He argued that he had not been retained in the tax appeal, did not have any relevant knowledge, and could not be compelled to testify as an expert because Connecticut law “prohibit[s] the compulsion of such unretained expert testimony.” The town objected.
The town thereafter filed a motion to dismiss the writ of error for lack of subject matter jurisdiction, arguing that the trial court‘s discovery order did not constitute an appealable final judgment. This court transferred the matter to the Appellate Court pursuant to
The Appellate Court granted the writ of error and remanded the case to the trial court with direction to vacate the order denying the plaintiff in error‘s motion for a protective order. Id., 206. The Appellate Court based its decision on its creation of a new, qualified unretained expert privilege that it announced. Id., 205. In defining the parameters of this privilege, the Appellate Court explained that, on remand, the trial court “should, in determining whether to grant Salinas’ motion for a protective order because his testimony is appropriately barred by the qualified unretained expert privilege, consider (1) whether, under the circumstances, he reasonably should have expected that, in the normal course of events, he would be called upon to provide opinion testimony in subsequent litigation; and (2) whether there exists a compelling need for his opinion testimony in this case. Additional considerations may be relevant to the analysis, including, for example, whether he was retained by a party with an eye to the present dispute.” Id., 205-206.
The town filed a petition for certification to appeal, which we granted, limited to the following issues: “1. Does Connecticut recognize a qualified expert testimonial privilege in pretrial discovery (and at trial) permitting an unretained expert to withhold testimony regarding an opinion that the expert has previously rendered and documented in a written report? 2. If Connecticut recognizes this privilege, what is its scope? 3. Does the Supreme Court have jurisdiction to grant
I
Initially, we must resolve Salinas’ challenge to this court‘s subject matter jurisdiction to grant certification to appeal from the Appellate Court‘s judgment on his writ of error, which was originally filed with this court but transferred to the Appellate Court pursuant to
Salinas argues that by transferring the case to the Appellate Court, this court lost jurisdiction over his writ of error. Specifically, he argues that, in the absence of a transfer of the writ of error back to this court,
“It is axiomatic that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases . . . the subject matter jurisdiction of the Appellate Court and of this court is governed by statute.” (Internal quotation marks omitted.) Banks v. Thomas, 241 Conn. 569, 582, 698 A.2d 268 (1997); see also State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983) (“The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.“). In the present case, whether this court may grant certification to appeal from a judgment of the Appellate Court on a transferred writ of error requires us to analyze the interplay between two statutes—
“When construing a statute . . . [
First, we must determine whether this court loses jurisdiction over a transferred writ of error in the absence of a motion to transfer it back to this court after the Appellate Court has issued a decision on the writ of error and the matter no longer is pending before the Appellate Court. We conclude that we have not lost final jurisdiction.
Finally, subsection (c) of
Specifically, subsection (b) of
Although it is clear that
Additionally, although our rules of practice may use the term “appeal” to refer to appeals by parties from final judgments; see Practice Book § 61-1; when previously interpreting the scope of the term “appeal” in relation to
For example, in In re Judicial Inquiry No. 2005-02, supra, 293 Conn. 258–59, this court held that a petition for review of a three judge panel determination regarding statutory authorization to disclose the state‘s application for a grand jury investigation under
Analogously, although
Second, writs of error and appeals share many features in common. The writ of error was the predecessor to the appeal and, in many ways, was the first form of appeal: “Prior to the enactment of the appeals statute in 1882, chapter 50 of the 1882 Public Acts, there were no appeals as of right in this state. . . . The writ of error is the common-law method, and formerly the only method in this [s]tate, of carrying up a cause from an inferior to a higher court for the revision of questions of law.” (Citations omitted; internal quotation marks omitted.) Haylett v. Commission on Human Rights & Opportunities, 207 Conn. 547, 550, 541 A.2d 494 (1988).
It is true that appeals and writs of error are procedurally distinct in how they are filed. Compare Practice Book §§ 63-1 and 63-3 with Practice Book §§ 72-1 through 72-4. Like appeals, however, writs of error must be taken from final judgments; Practice Book § 72-1 (a); and must conform to the rules of practice for appeals. See Practice Book § 72-4. After they have been filed, writs of error are therefore prosecuted, briefed, and argued in the same manner as appeals.
A primary distinction between appeals and writs of error is that writs of error fill a gap left by appeals by allowing nonparties aggrieved by a final judgment to obtain review. See Bergeron v. Mackler, 225 Conn. 391, 391-92 n.1, 623 A.2d 489 (1993) (noting aggrieved nonparty cannot appeal under
We therefore conclude that the Appellate Court‘s judgment on a transferred writ of error is tantamount to an appeal for purposes of
II
Having determined that this court has jurisdiction to grant certification to appeal from the Appellate Court‘s judgment on a transferred writ of error, we turn to whether, nevertheless, the Appellate Court lacked subject matter jurisdiction due to a lack of an appealable final judgment. We conclude that there was no final judgment, and, thus, the writ of error must be dismissed for lack of subject matter jurisdiction.
The town argues that the Appellate Court did not have subject matter jurisdiction over Salinas’ writ of error because the trial court‘s interlocutory discovery order was not an appealable final judgment and did not satisfy either prong of the test set forth in State v. Curcio, supra, 191 Conn. 31,7 for obtaining appellate review. See Practice Book § 72-1 (a) (“[w]rits of error for errors in matters of law only may be brought from
In response, Salinas argues that there was an appealable final judgment because the denial of his motion for a protective order terminated a separate and distinct proceeding. Specifically, he argues that (1) there was a clear and definite discovery order that constituted a final and comprehensive ruling from which there can be no further proceedings before the trial court that affect him,8 and (2) he is a nonparty who is not involved in the underlying lawsuit in any way. He further argues that the discovery order is not related to or intertwined with the underlying case because the trial court does not require the information sought to resolve the underlying case. In particular, he argues that his appraisal reports pertain to the value of the property in 2010 and 2011, whereas the underlying case centers on the value of the property in 2012. We disagree with Salinas that the trial court‘s ruling was immediately appealable.
The following additional facts are relevant to the resolution of this issue. During the course of pretrial discovery, the town obtained two appraisal reports commissioned by the bank and authored by Salinas containing his opinions regarding the value of the property as of October 6, 2010, and July 12, 2011. Because the expert appraisal report independently obtained by Redding Life contained property values drastically lower than the property values listed in Salinas’ reports, the town sought to depose Salinas to understand the difference in values. The town filed a motion for a commission to take an out-of-state deposition of Salinas. In that motion, the town listed Salinas’ qualifications as an appraiser, stated that he had appraised the property in 2010 and 2011 at values substantially in excess of the value stated by the town‘s assessor, and sought “to depose . . . Salinas with respect to his determination of [the] value[s] in these appraisals.”
Although the trial court granted the motion over Salinas’ objection, no deposition ever has taken place. There is therefore no record of what questions the town and Redding Life would have asked Salinas. Although it can be surmised from the town‘s motion for a commission that the town would have asked Salinas about the
With this factual context in mind, we turn to the legal principles that guide our analysis. “Practice Book § 72-1 (a) provides: ‘Writs of error for errors in matters of law only may be brought from a final judgment of the [S]uperior [C]ourt to the [S]upreme [C]ourt in the following cases: (1) a decision binding on an aggrieved nonparty . . . and (4) as otherwise necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law.’ . . . The lack of a final judgment deprives this court of subject matter jurisdiction over a writ of error.” (Emphasis in original.) McConnell v. McConnell, 316 Conn. 504, 510, 113 A.3d 64 (2015). Generally, “an order issued upon a motion for discovery ordinarily is not appealable because it does not constitute a final judgment, at least in civil actions.” Abreu v. Leone, 291 Conn. 332, 344, 968 A.2d 385 (2009). Typically, a nonparty must be found in contempt of a discovery order before it may appeal that ruling. See id., 346-47.
Nevertheless, appellate courts “may deem interlocutory orders or rulings,” including discovery rulings, “to have the attributes of a final judgment if they fit within either of the two prongs of the test set forth in State v. Curcio, [supra, 191 Conn. 31]. . . . Under Curcio . . . interlocutory orders are immediately appealable if the order or ruling (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them.” (Internal quotation marks omitted.) Niro v. Niro, supra, 314 Conn. 67–68.
In the present case, it is undisputed that the trial court‘s order denying Salinas’ motion for a protective order was an interlocutory ruling that normally is not appealable. Accordingly, the Appellate Court had jurisdiction only if the order satisfies the first or second prong of Curcio. It satisfies neither.
A
Our case law regarding whether a discovery order may constitute an appealable final judgment under the first prong of Curcio has undergone considerable change in the last decade, which has created some confusion.10 In Abreu v. Leone, supra, 291 Conn. 334, the defendant, a minor child, filed a claim with the Claims Commissioner seeking permission to bring an action against the Department of Children and Families (department) for personal injuries inflicted by Geo-
In determining whether there was a final judgment, this court in Abreu determined that the discovery order at issue fell within the first prong of Curcio because a separate and distinct proceeding had terminated. Id., 344-45. The reasoning for this holding was twofold. First, this court explained that “there are no further proceedings before the Superior Court involving [Abreu] because the questions have been propounded and the trial court unequivocally has ruled what must occur—certain identified questions must be answered. . . . [I]t is known whether [Abreu] will refuse to answer the contested questions put to him by the defendant, and it is known whether the trial court will uphold the ‘privilege’ as to the questions.” (Citation omitted; emphasis omitted.) Id., 345–46. Although Abreu could later be held in contempt and then appeal, “[b]ecause . . . the specific questions have been propounded and the trial court has ruled unequivocally what must occur, we can only regard the posture of the . . . case as the functional equivalent of that situation.” Id., 347.
Second, this court explained that “although the appellate final judgment rule is based partly on the policy against piecemeal appeals and the conservation of judicial resources . . . there is a counterbalancing factor in this situation.” (Citation omitted; internal quotation marks omitted.) Id. Specifically, “[r]equiring the postponement of an appeal of the order until [Abreu] . . . is forced to choose between being found in contempt for his good faith attempt to comply with
This court has since explained that our holding in Abreu established three guiding principles: “First, the court‘s focus in determining whether there is a final
Subsequently, and with these guiding principles in mind, this court in Woodbury Knoll, LLC, was faced with whether the denial of a motion to quash a subpoena duces tecum was an appealable final judgment. Id., 752-53. The defendants in error, who were the defendants in an underlying legal malpractice action, sought materials allegedly protected by the attorney-client privilege and work product doctrine from the plaintiff in error, a law firm that was a nonparty to the underlying action. Id. The trial court denied the motion to quash and later issued a thorough articulation as to which documents were discoverable and why, from which the plaintiff in error appealed. Id., 754-55. This court held that the discovery order satisfied the first prong of Curcio. Id., 757.
However, this court‘s reasoning in Woodbury Knoll, LLC, differed somewhat from its reasoning in Abreu. As in Abreu, the court held that the discovery order terminated a separate and distinct proceeding because there was “a clear and definite discovery order,” where the specific “questions have been propounded and the trial court has unequivocally ruled . . . .” (Internal quotation marks omitted.) Id., 761. Unlike Abreu, the court also emphasized that the plaintiff in error was not a party to the underlying action. Id. For these two reasons “alone,” the court in Woodbury Knoll, LLC, held that the first prong of Curcio was satisfied. Id., 762.11
Nonetheless, the court in Woodbury Knoll, LLC, went on to hold that “there [also were] compelling policy reasons not to require [the plaintiff in error] to be subjected to a contempt ruling in order for it to obtain appellate review of the discovery order“; id.; because it would be unjust “to apply our final judgment jurisprudence in a manner that requires a nonparty attorney, in his or her role as an officer of the court, to disobey a court order as the sole means of raising a good faith challenge to a discovery order in order to satisfy his or her professional obligation to the client.” Id., 766. In a footnote, the court noted that “policy concerns are not a factor under either prong of Curcio, and, accord-
Even more recently, this court has clarified its holdings in Abreu and Woodbury Knoll, LLC. In Niro v. Niro, supra, 314 Conn. 62, the trial court in a marriage dissolution case ordered nonparties, the family members and business partners of the defendant, to produce specific business and personal financial records that were essential for the court to determine the state of the defendant‘s finances and to distribute equitably the marital assets. Id., 65–66. This court held that the trial court‘s order was not a final judgment under either prong of Curcio. Id., 67. In determining that the first prong was not satisfied, this court summarized the holding of Woodbury Knoll, LLC, as relying on the fact that there was a clear, definite, final and comprehensive order, and that the plaintiff was a nonparty not involved in the underlying lawsuit in any way. We explained in Niro that although the discovery order was directed at a nonparty, it was “intertwined with the underlying dissolution proceeding because the information subject to disclosure will contribute to the trial court‘s knowledge of [the defendant‘s] assets and its ability to perform its statutory duty of equitably distributing the marital estate.” Id., 72. Thus, this court shifted its focus from whether the nonparty was involved in the underlying action, an important consideration in Woodbury Knoll, LLC, to whether the information possessed by the nonparty was involved or intertwined with the underlying action.
This court therefore explained in McConnell v. McConnell, supra, 316 Conn. 504, that, in Niro, it had clarified its holding in Woodbury Knoll, LLC: “We have recently clarified . . . that the relevant discovery order [in Woodbury Knoll, LLC] was a final judgment under the first prong of Curcio and, therefore, could be challenged by way of a writ of error . . . not based solely on the fact that [the plaintiff in error] was a nonparty to the underlying action, but . . . also based on the fact that the discovery order . . . was not intertwined with the underlying proceeding. . . . [A] discovery order directed at a nonparty does not arise from a separate and distinct proceeding, but is intertwined with the underlying action when the information sought in the order is required by the finder of fact to resolve the issues raised in that action.” (Citation omitted; internal quotation marks omitted.) Id., 512. In McConnell, this court held that the first prong of Curcio was not satisfied because the trial court‘s discovery order sought information that was not available any other way, as all other witnesses had invoked their fifth amendment right not to testify, and the order was directed at materials that were required by the trial court to resolve the issues that had been raised in the underlying probate appeal. Id., 512–13. Thus, the discov-
In sum, in light of Abreu, Woodbury Knoll, LLC, Niro and McConnell, an interlocutory discovery order is an appealable final judgment under the first prong of Curcio only if the trial court has issued a clear and unequivocal order that is sufficiently definite, specific, and comprehensive concerning a discovery request served on a nonparty for information that is not required to resolve the underlying issue. In the present case, the order at issue does not satisfy the first prong of Curcio because there was no clear and unequivocal trial court order. Specifically, the trial court‘s discovery order was not sufficiently definite, specific, or comprehensive.
Unlike in Abreu, Woodbury Knoll, LLC, and Niro, in which the trial court ruled on the specific questions and documents at issue, in the present case, the specific questions that the parties would pose to Salinas are unknown. Although the town has stated that its primary purpose for deposing Salinas is to authenticate his reports, it also has conceded on numerous occasions that its questions would pertain to a broader subject matter—his reports in general and his opinions as to the value of the property more specifically. Redding Life has not stated on the record the nature or specifics of its potential questions. And Salinas has refused to testify at all, asserting that he has an absolute privilege from testifying. Although the court‘s articulation of its order specifically stated that Salinas could be deposed as to preexisting opinions, nothing in its order limits the questioning to this topic. Without knowing the precise questions that will be asked at the deposition, this court cannot determine whether any privilege, if one even exists, applies.
Even if we assume that Salinas has an absolute privilege not to testify regarding his unretained expert opinions, without speculating, we cannot determine on this record whether this privilege applies to all questions that may be asked at the deposition. No privilege exists that would prohibit the town from deposing Salinas altogether, and Salinas does not argue for such an expansive privilege. For example, even an absolute privilege would not prevent the town and Redding Life from deposing Salinas as a fact witness or as a keeper of records to establish the admissibility of his reports as business records. See
Because the record does not contain the questions that would be posed to Salinas, it is unclear which, if any, questions would be privileged. There is no reason the parties—including Redding Life, which has not participated in this appeal—could not have done as the parties in Abreu did: attend a deposition and make a record of the specific questions that seek allegedly privileged information, and then request a further ruling from the trial court on particular questions. Instead, without such a record, Salinas essentially seeks an advisory opinion, requesting a decision regarding the existence of an unretained expert privilege in the event that privileged questions are posed to him at the deposition. We are not prepared to issue such an advisory opinion recognizing a new privilege for expert witnesses on this record. See, e.g., Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 419-20, 880 A.2d 882 (2005) (“[W]e have consistently held that we do not render advisory opinions. . . . [W]here the question presented is purely academic, we must refuse to entertain the appeal.” [Internal quotation marks omitted.]); McDonnell v. Maher, 3 Conn. App. 336, 339, 488 A.2d 461 (1985) (“[w]ithout an actual controversy, the case is a hypothetical tempest in an appellate teapot“). The requirement of a definite and comprehensive order under the first prong of Curcio is not merely a technical rule but, rather, enables this court to see the whole picture when reviewing an interlocutory order. In the absence of specificity, we are left in the dark, attempting to determine the scope of an exception, assuming one exists, when such an exception may not even apply to the case at hand.
Salinas responds that the present discovery order is analogous to, not distinguishable from, the discovery order in Abreu because no further proceedings involve him, as he cannot be held in contempt in Connecticut, and, thus, the discovery order terminated a separate and distinct proceeding. Although it is true that, in Abreu, this court noted that under the first prong of Curcio, further proceedings would not involve Abreu because the proceedings were the equivalent of contempt proceedings; Abreu v. Leone, supra, 291 Conn. 347; it is clear from the evolution of our case law that, as applied to discovery orders, the first prong does not focus on whether further proceedings involve the nonparty deponent, but on whether further proceedings require the information possessed by the nonparty. See McConnell v. McConnell, supra, 316 Conn. 512; Niro v. Niro, supra, 314 Conn. 72. However, because we determine that there was no clear and unequivocal order, we need not determine whether the information at issue was required by the trial court to resolve the
Accordingly, the discovery order at issue did not terminate a separate and distinct proceeding under the first prong of Curcio because there was no clear and unequivocal order.
B
Alternatively, Salinas contends that the discovery order was an appealable final judgment because no further proceedings before the trial court can affect him. This argument, if convincing, would permit him to bring a writ of error under the second prong of Curcio. We agree with the town, however, that there are further proceedings that could affect him. Specifically, Salinas may be held in contempt by the trial court for failing to comply with the discovery order, which then would constitute an appealable final judgment. See Niro v. Niro, supra, 314 Conn. 73 (nonparty may appeal from discovery order in future if held in contempt for violation of order).
Salinas argues that he could not be held in contempt by a Connecticut court because the subpoena was served on him in Florida for a deposition in Florida, and, thus, any action to enforce the subpoena or hold him in contempt for not complying with it would need to be brought in a Florida court. This argument fails to bring him within Curcio‘s second prong for a variety of reasons.
First, it may be true that a Florida court would have been an appropriate place for Salinas to seek a protective order and for the town to initiate contempt proceedings. See Practice Book § 13-28 (e) and (f); see also Cassinelli Bros. Construction Co. v. Gray, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-95-0142662-S (May 9, 1996) (16 Conn. L. Rptr. 629, 629) (“[a]lthough this court can issue a commission to take an out-of-state deposition . . . the New York court will have to issue a subpoena to compel attendance . . . [and] make any appropriate order in aid of taking such deposition” [internal quotation marks omitted]). Salinas, however, did not seek a protective order in Florida. Rather, he requested such an order from the Connecticut Superior Court. We presume that, having invoked the jurisdiction of the Connecticut court system, Salinas will comply with Connecticut‘s resolution of his challenge to the subpoena. If Salinas never had filed a motion for a protective order in the Connecti-
After the trial court declined to issue the protective order, Salinas sought review from this court and our Appellate Court. We are willing to provide that review so long as he appeals from a final judgment under our law. Salinas, however, wants to have his cake and to eat it, too. He seeks review from this court to obtain a protective order but also argues that the Connecticut courts have no power over him for purposes of contempt.
Second, although it is true that a Connecticut court could not enforce the subpoena at issue as a contempt sanction because it was issued by an out-of-state authority to an out-of-state witness; see Struckman v. Burns, 205 Conn. 542, 552, 534 A.2d 888 (1987) (“the defendant does not have the power by subpoena to force an out-of-state witness to travel to Connecticut for trial“); that does not mean the court cannot hold Salinas in contempt for violating a discovery order that was the byproduct of his having sought aid from the Connecticut court system. See Practice Book § 1-13A (a) (“[a]ny person . . . misbehaving or disobeying any order of a judicial authority in the course of any judicial proceeding may be adjudicated in contempt and appropriately punished“). The court‘s power to impose sanctions for contempt is not limited to forcing a witness to testify. See Wehrhane v. Peyton, 134 Conn. 486, 496, 58 A.2d 698 (1948) (explaining that although certain orders, such as injunctions, may not be enforced against nonresidents, there are other “means of punishing a violator and that is to deny him any aid from courts of the state . . . until he has purged himself of the contempt“); see also Evans v. General Motors Corp., 277 Conn. 496, 523, 893 A.2d 371 (2006) (court has discretion to determine which sanctions to impose for contempt); Practice Book § 1-21A (sanctions for civil contempt may include fines). Even if sanctions will be of no use or are unenforceable in Connecticut, a party is not prevented from moving for a finding of contempt. See Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 240-41, 905 A.2d 1165 (2006) (explaining that even if sanctions are not useful, party may still move for finding of contempt). Moreover, the question of enforcement of a Connecticut
Third, the case on which Salinas relies to establish that he cannot be held in contempt by a Connecticut court, Lougee v. Grinnell, 216 Conn. 483, 486-87, 582 A.2d 456 (1990), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999), is distinguishable. In Lougee, the underlying civil action was pending in Texas. Id., 484–85. The plaintiff in that underlying case applied to the Superior Court in Connecticut for a subpoena to force Virginius B. Lougee, a nonparty who lived in Connecticut, to appear at a deposition in Connecticut. Id., 485-86. Lougee moved to quash the subpoena and for a protective order in Connecticut Superior Court. Id., 486. The trial court denied Lougee‘s motion. Id. Lougee appealed, and this court held that there was an appealable final judgment under the first prong of Curcio because “the sole judicial proceeding instituted in Connecticut concerned the propriety of [the] deposition subpoena, a proceeding that will not result in a later judgment from which [Lougee could] then appeal.” (Internal quotation marks omitted.) Id., 487.
Thus, Lougee did not involve, as the present case does, whether a nonresident, nonparty may be held in contempt for violating a discovery order for purposes of the second prong of Curcio. Rather, Lougee involved a discovery order that was the only portion of the underlying case pending in a Connecticut court. This court made no suggestion in Lougee that the reason why further proceedings would not affect Lougee was because the trial court was incapable of holding him in contempt. Rather, the focus of our decision in Lougee was that, because the discovery order was the sole judicial proceeding instituted in Connecticut, the trial court‘s ruling terminated a separate and distinct proceeding under Curcio‘s first prong. Id. Unlike the situation in Lougee, the discovery order in the present case is not the sole judicial proceeding instituted in Connecticut. Rather, the discovery order at issue is part of an underlying civil action instituted in Connecticut. Additionally, as explained in part II A of this opinion, the discovery order in the present case did not terminate a separate and distinct proceeding because it was not a clear and definite order, which distinguishes it from the discovery order in Lougee.
Finally, requiring Salinas to appeal from an order of contempt does not raise an important counterbalancing public policy in favor of permitting an interlocutory appeal. Such a result does not violate justice or public policy in the same way as requiring the foster parent in Abreu or the nonparty law firm in Woodbury Knoll,
Accordingly, the discovery order does not satisfy either prong of Curcio and thus does not constitute an appealable final judgment. Therefore, Salinas’ writ of error must be dismissed for lack of subject matter jurisdiction.13
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to dismiss the writ of error for lack of subject matter jurisdiction.
In this opinion the other justices concurred.