Niro v. Niro

314 Conn. 62

100 A.3d 801

Sandy NIRO

v.Peter NIRO, Jr.

No. 19045.

Supreme Court of Connecticut.

Argued Jan. 16, 2014.

Decided Oct. 14, 2014.

Joseph E. Faughnan, with whom, on the brief, were Philip G. Kent, New Haven, and Gregory P. Muccilli, Hartford, for the plaintiffs in error (Anthony Niro and Nanette Niro).

Steven R. Dembo, Hartford, with whom were Caitlin Kozloski and, on the brief, P. Jo Anne Burgh, Glastonbury, for the defendant in error (Sandy Niro).

Lisa A. Magliochetti, West Hartford, for the defendant in the underlying action (Peter Niro, Jr.).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

Opinion

ZARELLA, J.

The plaintiffs in error, Anthony Niro and his wife, Nanette Niro (plaintiffs), bring this writ of error seeking reversal of the trial court's judgment denying their respective motions to quash separate but identical subpoenas duces tecum served upon them in the underlying marriage dissolution action by the defendant in error, Sandy Niro (defendant),¹ and ordering them to produce certain financial records. The plaintiffs claim that this court has subject matter jurisdiction over the writ of error because, given their status as nonparty witnesses in the dissolution action, the trial court's order of production constitutes an appealable final judgment. They further claim that they should not be required to comply with the order because the disputed records consist of personal papers and documents that are privileged under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant responds that this court lacks subject matter jurisdiction over the writ of error because the order of production was not a final judgment and does not satisfy either prong of the test established in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), for determining whether an interlocutory order is an appealable final judgment, namely, that the order “terminates a separate and distinct proceeding” or “so concludes the rights of the parties that further proceedings cannot affect them.” Id., at 31, 463 A.2d 566. The defendant also argues that the plaintiffs did not raise their claim regarding privilege in the trial court, they have not properly briefed their state constitutional claim, and, even if these impediments did not exist, their privilege claim would fail on the merits. We conclude that the trial court's order is not an appealable final judgment under the test set forth in Curcio, and, accordingly, this court lacks subject matter jurisdiction over the writ of error.

The record reveals the following relevant facts and procedural history. The defendant married Peter Niro, Jr. (Peter Niro), in September, 1991. During the marriage, Peter Niro and his brother, Anthony Niro, became business partners and held controlling membership interests in at least seventeen limited liability companies that owned real estate in Connecticut and Florida. In turn, each company was owned and controlled by a trust created by the brothers. The brothers also jointly owned or held ownership interests in several other business entities. Nanette Niro was the bookkeeper for these companies, trusts and business entities.

Over time, the business and family relationships broke down such that Peter Niro no longer had access to the financial records pertaining to the jointly owned trusts and business entities. The defendant and Peter Niro also came to believe that the plaintiffs and other family members were misappropriating a substantial portion of Peter Niro's share of the jointly owned assets. Consequently, after the defendant commenced this action in March, 2011, for dissolution of her marriage to Peter Niro, she served a subpoena duces tecum on each of the plaintiffs in November, 2011, seeking the production of all business and personal financial records that might be related to the jointly owned trusts and business entities so that she could obtain a complete understanding of the marital assets available for equitable distribution pursuant to General Statutes § 46b–81.

On December 22, 2011, the plaintiffs filed motions to quash the subpoenas and for protective orders on the ground that the requests were unduly burdensome, unreasonable, oppressive and intended to embarrass and harass them because, among other things, they sought personal financial information from nonparty witnesses that would not lead to evidence admissible in the dissolution proceeding. The trial court denied those motions on January 19, 2012.

Thereafter, the trial court granted the plaintiffs' motions to reargue. A hearing on the motions was held on February 16, 2012, during which the plaintiffs asserted, for the first time, their fifth amendment privilege with respect to their personal financial records. The court denied the motions to reargue and ordered the plaintiffs “to disclose all business records that are the subject of the [defendant's] subpoenas, on or before April 1, 2012, except any records for which a privilege is claimed. Counsel shall keep a log of all items for which a privilege is claimed. The items listed in the log shall be submitted on or before March 22, 2012, and will be adjudicated at a later date.” On March 22, 2012, the plaintiffs provided the court with a privilege log listing approximately 150 business records they did not object to disclosing and approximately 100 personal records they objected to disclosing.

On June 1, 2012, the defendant filed another motion seeking production of the personal records and a motion seeking an order of contempt for the plaintiffs' failure to comply with the trial court's prior order to disclose the business records. The plaintiffs responded that the court had not ordered disclosure of their personal records and that they had disclosed the business records in a related action.²

Following a hearing on September 6, 2012, the trial court ordered access to the plaintiffs' business records and reserved decision on disclosure of the personal records. On September 17, 2012, the court denied the defendant's motion for contempt and relied on Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), in granting the motion for an order of production of the plaintiffs' personal records on the ground that the fifth amendment privilege did not apply to those records. The plaintiffs subsequently filed a writ of error with this court, challenging the trial court's order of production. On November 23, 2012, the trial court issued a memorandum of decision further explaining its reasons for ordering production of the personal records listed in the plaintiffs' privilege log.

We begin our analysis with the jurisdictional claim. The defendant argues that this court does not have subject matter jurisdiction over the writ of error because the trial court's interlocutory order of production was not an appealable final judgment and does not satisfy either prong of the test set forth in Curcio 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 a final judgment of the superior court to the supreme court”). The plaintiffs respond that, even if this court does not have subject matter jurisdiction under the first prong of Curcio, which they do not concede, it has jurisdiction under the second prong because the order of production so concluded their federal and state constitutional rights that further proceedings could not affect them. We conclude that, under the facts and circumstances of this case, the order of production does not satisfy either prong of Curcio, and, therefore, we do not reach the plaintiffs' constitutional claims.

The standard of review is well established. “A determination regarding ... subject matter jurisdiction is a question of law ... [and, therefore] our review is plenary.” (Internal quotation marks omitted.) Khan v. Hillyer, 306 Conn. 205, 209, 49 A.3d 996 (2012).

With respect to the governing legal principles, we have stated that, although “[t]he subject matter jurisdiction of our appellate courts is limited by statute to appeals from final judgments ... [t]he legislature may ... deem otherwise interlocutory actions of the trial courts to be final judgments, as it has done by statute in limited circumstances.... Alternatively, the courts may deem interlocutory orders or 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. at 31, 463 A.2d 566 ].... Under Curcio, the landmark case in the refinement of final judgment jurisprudence ... 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. [Id.]

“The first prong of the Curcio test ... requires that the order being appealed from be severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding.... If the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy the first prong of Curcio .... Obviously a ruling affecting the merits of the controversy would not pass the first part of the Curcio test. The fact, however, that the interlocutory ruling does not implicate the merits of the principal issue at the trial ... does not necessarily render that ruling appealable. It must appear that the interlocutory ruling will not impact directly on any aspect of the [action]....

“The second prong of the Curcio test focuses on the nature of the right involved. 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 [parties] irreparably harmed unless they may immediately appeal.... One must make at least...