BROWN AND BROWN, INC. v. Blumenthal

Opinion

This appeal arises from an action seeking injunctive, declaratory and equitable relief brought by the plaintiff, Brown and Brown, Inc., against the defendant, Attorney General Richard Blumenthal, in connection with a subpoena duces tecum and interrogatories issued by the defendant pursuant to General Statutes § 35-421 as part of an investigation of potential *649antitrust violations in the insurance industry.2 The plaintiff, an independent insurance intermediary that provides insurance and reinsurance products and services to various types of professional, corporate and individ*650ual clientele, appeals3 from the trial court’s decision denying its motion for summary judgment. On appeal, the plaintiff asserts that the trial court improperly denied its motion for summary judgment, which had sought a declaration that the defendant may not disclose any documents or information provided by the plaintiff in response to the subpoena and interrogatories issued pursuant to § 35-42, except in two limited circumstances. Because we conclude that the trial court’s denial of the plaintiffs motion for summary judgment was not a final judgment, we dismiss the plaintiffs appeal.

The following undisputed facts and procedural history are relevant to this appeal. The defendant is conducting an ongoing investigation into certain practices in the insurance industry that may be in violation of the Connecticut Antitrust Act, General Statutes § 35-24 et seq. In furtherance of this investigation, the defendant issued interrogatories and a subpoena duces tecum to the plaintiff pursuant to § 35-42. The plaintiff partially responded to the defendant’s requests, producing more than 12,000 pages of documents.

During the course of the plaintiffs production of documents, it became evident that the plaintiff and the defendant disagreed about the ability of the defendant to disclose information produced pursuant to § 35-42 to individuals outside of the defendant’s office. As a result, the plaintiff did not complete its response to the defendant, and instead filed the present action in the Superior Court. The plaintiffs claims are set forth in a five count complaint, which seeks: a declaration of the scope of the confidentiality protection provided by § 35-42; temporary and permanent injunctive relief enjoining *651the defendant from disclosing the responsive material and information in violation of the provisions of § 35-42; a writ of mandamus requiring the defendant to protect the confidentiality of the responsive material and information by not disclosing it in violation of § 35-42; an order quashing or modifying the subpoena so as to ensure appropriate safeguards to protect the disclosure of trade secrets and other confidential commercial and financial information; and a protective order preventing the disclosure by the defendant of the plaintiffs trade secrets and other confidential commercial and financial information. The defendant subsequently filed a separate action for a declaratory judgment seeking an order requiring the plaintiff to comply with the subpoena duces tecum and the interrogatories. See footnote 2 of this opinion.

Thereafter, the plaintiff filed a motion for summary judgment, seeking a “declaration from the court that pursuant to [§] 35-42, the [defendant] may not disclose any of [the plaintiffs] documents or information provided pursuant to a subpoena or interrogatories issued pursuant to § 35-42 to any person outside the [defendant’s office] except to the extent (1) a court permits— after notice to the [plaintiff] and an opportunity to be heard — during the course of a litigation that arises from the [defendant’s] antitrust investigation; or (2) provided to an official of another state or the federal government pursuant to § 35-42 (g) where such official will maintain the same degree of confidentiality provided by [§] 35-42 (c) and (e).”4 The trial court denied the plaintiffs motion for summary judgment, rejecting the plaintiffs claims, including its interpretation of § 35-42. This appeal followed.

We begin by setting forth the standard of review. “The lack of a final judgment implicates the subject *652matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise plenary review]. . . . Pritchard v. Pritchard, 281 Conn. 262, 270, 914 A.2d 1025 (2007).

“We commence the discussion of our appellate jurisdiction by recognizing that there is no constitutional right to an appeal. E.g., Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965); State v. Figueroa, 22 Conn. App. 73, 75, 576 A.2d 553 (1990), cert. denied, 215 Conn. 814, 576 A.2d 544 (1991). Article fifth, § 1, of the Connecticut constitution provides for a Supreme Court, a Superior Court and such lower courts as the [G]eneral [Assembly shall . . . ordain and establish, and that [t]he powers and jurisdiction of these courts shall be defined by law. ... To consider the [plaintiffs] claims, we must apply the law governing our appellate jurisdiction, which is statutory. State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The legislature has enacted General Statutes § 52-263,5 which limits the right of appeal to those appeals filed by aggrieved parties on issues of law from final judgments. Unless a specific right to appeal otherwise has been provided by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim. . . . Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 733-34, 818 A.2d 731 (2003); see *653also State v. Curcio, supra, 30 (right of appeal is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met). Further, we have recognized that limiting appeals to final judgments serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings. . . . Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 225, 901 A.2d 1164 (2006).” (Emphasis in original; internal quotation marks omitted.) Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 466-67, 940 A.2d 742 (2008).

In the present case, the plaintiff appeals from the trial court’s denial of its motion for summary judgment. The denial of a motion for summary judgment does not result in a judgment, however, and no judgment therefore was rendered. “As a general rule, an interlocutory ruling may not be appealed pending the final disposition of a case. See, e.g., Doublewal Corp. v. Toffolon, 195 Conn. 384, 388, 488 A.2d 444 (1985); see also State v. Curcio, [supra, 191 Conn. 30] (right of appeal is purely statutory and is limited to appeals by aggrieved parties from final judgments). The denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, not a final judgment for purposes of appeal. See, e.g., Connecticut National Bank v. Rytman, 241 Conn. 24, 34, 694 A.2d 1246 (1997). We previously have determined [however] that certain interlocutory orders have the attributes of a final judgment and consequently are appealable under ... § 52-263. ... In State v. Curcio, [supra, 31], we explicated two situations in which a party can appeal an otherwise interlocutory order: (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. . . . Esposito v. Specyalski, 268 Conn. 336, 345-46 n.13, 844 A.2d 211 (2004).” *654(Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 784-85, 865 A.2d 1163 (2005).

At oral argument in this court, the parties asserted that the present case is reviewable under the second prong of State v. Curcio, supra, 191 Conn. 31. Specifically, the parties claimed that the trial court’s denial of the plaintiffs motion for summary judgment constituted a rejection of the plaintiffs interpretation of the confidentiality requirements of § 35-42, and because each of the plaintiffs claims sought confidentiality of documents disclosed pursuant to § 35-42, the court’s denial of summary judgment so concluded the rights of the parties that further proceedings cannot affect them. We disagree.

We begin by noting that the parties’ agreement on the existence of a final judgment does not confer jurisdiction on this court. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. . . . The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear. . . . Neither the parties nor the trial court, however, can confer jurisdiction upon [an appellate] court. . . . The right of appeal is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.” (Citations omitted; internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 33-34, 930 A.2d 682 (2007).

We now must determine whether the trial court’s order so concluded the rights of the parties that further proceedings cannot affect them. In denying the plaintiffs motion for summary judgment, Hon. Robert J. Hale, judge trial referee, rejected the plaintiffs interpretation of the confidentiality provisions of § 35-42. Because the defendant did not file a cross motion for *655summary judgment, however, the trial court’s interpretation of § 35-42 has not been incorporated into any judgment. The present action remains an open matter on the trial court docket, and further proceedings will occur in this case. Specifically, it is likely that the case will be placed on a docket management calendar, at which time the parties will be required to take the necessaiy steps to obtain a judgment or the case will be dismissed for failure to prosecute the action with reasonable diligence. See Practice Book § 14-3.6

*656Moreover, the judge who presides at those future proceedings will not be bound by the legal determinations made by Judge Hale in his denial of the motion for summary judgment. The law of the case doctrine “expresses the practice of judges generally to refuse to reopen what [already] has been decided .... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored. . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. . . .

“A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he [or she] has the same right to reconsider the question as if he [or she] had himself [or herself] made the original decision. . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case .... According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart *657from an interlocutory order or ruling of another judge in the same case, upon a question of law. . . .

“This court has determined that although a judge should be hesitant to rule contrary to another judge’s ruling, he or she may do so [nevertheless, if the case comes before him [or her] regularly and [the judge] becomes convinced that the view of the law previously applied by [a] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed .... By way of example, this court has noted that [t]he adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor ... is a common illustration of this principle. . . . From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling.” (Citations omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 249-50, 926 A.2d 656 (2007).

In the present case, therefore, any other judge to whom this action is assigned in the future will not be bound by Judge Hale’s ruling on the plaintiffs motion for summary judgment. In addition, we do not know whether the matter will be assigned again to Judge Hale, who is a judge trial referee. Pursuant to General Statutes § 52-434,7 a judge trial referee, to whom civil cases of *658an adversary nature can be referred, must be reappointed annually.

Because no judgment has been rendered in this case and further proceedings may occur in which the trial court will not be bound by Judge Hale’s interpretation of § 35-42, we cannot conclude that the rights of the parties have been so determined by Judge Hale’s denial of summary judgment that further proceedings cannot affect them. We conclude that the court’s denial of the plaintiffs motion for summary judgment is not an appealable final judgment. As a result, we lack subject matter jurisdiction to entertain the present appeal.

The appeal is dismissed.