Opinion
No. HHD X04 CV-02-4034703 S
May 28, 2008
MEMORANDUM OF DECISION
The court has considered the plaintiffs' April 2, 2008 motion to sever and/or bifurcate causes of action or, alternatively, for a determination to allow an immediate appeal pursuant to Practice Book § 61-4 (#372) (motion) and the defendant Twin City Fire Insurance Company's objection, dated May 13, 2008 (#379). For the reasons stated below, the motion is denied.
I BACKGROUND
This matter concerns the plaintiffs' claims for insurance coverage and involves several underlying actions. The court (Beach, J.) issued two rulings on the parties' motions for summary judgment, in a memorandum of decision, dated September 8, 2006, and by order dated November 13, 2007 (the decisions). Therein, the court granted partial summary judgment in favor of defendant Twin City Fire Insurance Company as to certain aspects of the case.
In addition, the court (Beach, J.) previously denied the same relief which the plaintiffs now again request, in a memorandum of decision dated November 13, 2006. Therein, the court stated, "Southridge seeks the opportunity to separate the portions of the case as to which summary judgment has been granted so that those portions may be more speedily appealed . . . [I]t is more sensible in the circumstances not to `split' the case. Trial is scheduled to occur on the remaining issues before the time that an appeal is likely to be heard, and judicial economy would not be served by severance."
According to the current schedule, jury selection in this matter will occur in May 2009. The commencement of the presentation of evidence is scheduled to begin in June 2009.
II DISCUSSION A
"The jurisdiction of the appellate courts is restricted to appeals from judgments that are final . . . The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level . . . 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." (Citations omitted; internal quotation marks omitted.) Mazurek v. Great American Insurance Co., 284 Conn. 16, 33, 930 A.2d 682 (2007).
The plaintiffs rely, in part, on an off the record comment made by Judge Beach, at a status conference, in which they claim he "stated from the bench that, in hindsight, he wished he had granted the original plaintiffs' motion for permission to file an immediate appeal." (Footnote omitted.) See motion, p. 5. "[T]he court is of course not bound by offhand remarks it made . . ." even if they had been set forth in an earlier opinion. Swihart v. Country Home Bakers, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 97 06094 (July 16, 1999, Corradino, J.).
The plaintiffs also rely on Practice Book § 17-51, which provides, "[i]f it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim." The plaintiffs assert that, if the court ordered severance and/or bifurcation of this matter as it pertains to certain of the underlying cases, § 17-51 authorizes the parties to obtain an appellate ruling on the decisions, without delaying resolution of the issues which remain to be tried in this court.
The court is unpersuaded that bifurcation or severance would result in an appealable final judgment. In Psaki v. Karlton, 97 Conn.App. 64, 71, 903 A.2d 224 (2006), the Appellate Court "conclude[d] that [defendants'] argument that Practice Book § 17-51 gives us jurisdiction to hear their appeal is without merit." "Rules of practice . . . do not ordinarily define subject matter jurisdiction . . . With regard to rules of practice, General Statutes § 51-14(a) authorizes the judges of the Superior Court to promulgate rules regulating pleading, practice and procedure in judicial proceedings . . . Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts . . . [T]he rules of practice cannot confer jurisdiction on the appellate courts because appellate jurisdiction stems solely from our constitution and from statutes." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 70-71.
Also, the plaintiffs' reliance on Polivy v. Air One, Inc., 46 Conn.App. 573, 700 A.2d 71, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997), is misplaced. There, the action was bifurcated after the filing of cross motions for summary judgment to determine the priorities of security interests. Partial summary judgment was granted on the plaintiff's complaint, as to priority, in favor of a defendant, from which the plaintiff did not appeal. See id., 576. Thereafter, the case proceeded to trial as to the defendant's counterclaims. That matter did not involve an appeal of part of the case during its pendency in the trial court. See id., 573-4.
In addition, the plaintiffs contend that a result similar to severance and/or bifurcation would be obtained if the court allowed them to re-plead this matter as separate actions. The court need not consider a hypothetical re-pleading of the claims as to which partial summary judgment was granted in the decisions.
B
In the alternative, the plaintiffs move for an immediate appeal pursuant to Practice Book § 61-4(a), which concerns "[j]udgment not final unless trial court makes written determination and chief justice or chief judge concurs," and which provides that, "[t]his section applies to a trial court judgment that disposes of at least one cause of action where the judgment does not dispose of either of the following: (1) an entire complaint, counterclaim, or cross complaint, or (2) all the causes of action in a complaint, counterclaim or cross complaint brought by or against a party." Further, § 61-4(a) states, "[w]hen the trial court renders a judgment to which this section applies, such judgment shall not ordinarily constitute an appealable final judgment. Such a judgment shall be considered an appealable final judgment only if the trial court makes a written determination that the issues resolved by the judgment are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified, and the chief justice or chief judge of the court having appellate jurisdiction concurs." (Emphasis in original.)
"[T]he purpose of Section 61-4 is to create a narrow exception to our final judgment rule for those rare and special cases where interlocutory review of a trial court's pretrial ruling will resolve or greatly streamline the resolution of the entire case. In those limited circumstances, the purpose of the final judgment rule — to promote efficiency in the handling of cases by avoiding the added cost, delay and administrative burden of piecemeal litigation — is better served by granting the right to an immediate appeal than, as usual, postponing any appeal until the rights of all parties have been fully adjudicated in the trial court. Only if the trial judge, who knows the case personally and understands the interplay among its several claims, and the chief judge of the appellate court having jurisdiction, who knows the current status of his or her appellate docket, are mutually satisfied that the possible benefits of early appellate review exceed the likely costs and burdens of such review should the motion be granted. Other considerations include whether an appellate ruling would likely have the practical effect of ending the case in the trial court, so that the appellate court would not be faced with deciding the same case twice . . . Because the relief available pursuant to § 61-4 is to be granted sparingly, and because . . . several other issues would be tried in this court regardless of the outcome of the appeal, . . . the appropriate exercise of discretion militates against recommending immediate relief in the Appellate Court." (Citation omitted.) Fortin v. Hartford Underwriters Insurance Co., Superior Court, judicial district of Middlesex, Complex Litigation Docket at Middletown, Docket No. X04 CV 03 0103483 (January 19, 2007, Beach, J.).
Regardless of the resolution of an appeal of the decisions, significant issues in this case remain to be tried in this court. In addition, it appears unlikely that an interlocutory appeal would be adjudicated prior to the trial. Assuming that another appeal follows the June 2009 trial, that would result in the pendency of two appeals from the same Superior Court matter at the same time. As Judge Beach previously concluded, judicial economy would not be served thereby.
CONCLUSION
For the reasons stated above, plaintiffs' motion to sever and/or bifurcate or, alternatively, for a determination to allow an immediate appeal pursuant to Practice Book § 61-4, is denied.
It is so ordered.