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Redding Life Care, LLC v. Town of Redding

Supreme Court of Connecticut

May 21, 2019

REDDING LIFE CARE, LLC
v.
TOWN OF REDDING

          Argued November 14, 2018

         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.

          Robinson, C. J., and Palmer, D'Auria, Ecker and Lavine, Js.

          OPINION

          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 Capital Source 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 court denied Salinas' motion and ordered the following: ‘‘The deposition shall proceed. The town shall pay the witness his fees and expenses as provided in Practice Book § 13-4 (c) (2). The town shall enter into any reasonable protective order proposed by the witness or the other parties designed to limit the use of the information obtained in the deposition to this case only.'' Salinas then filed a writ of error with this court seeking appellate review of the trial court's denial of his motion for a protective order. Salinas subsequently filed a motion seeking the following articulation: ‘‘Did the trial court conclude that . . . Salinas can be compelled under Connecticut law to provide expert witness testimony against his will? If so, what is the basis for that conclusion?'' The court responded: ‘‘The answer to the first question is no. It was unnecessary to reach that conclusion because [Salinas] had already authored appraisals that contained his opinions.''

         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 General Statutes § 51-199 (c), and that court denied the town's motion to dismiss. Redding Life Care, LLC v. Redding, 174 Conn.App. 193, 196, 165 A.3d 180 (2017).

         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 certification to appeal from the Appellate Court's final determination of a writ of error?'' Redding Life Care, LLC v. Redding, 327 Conn. 991, 992, 175 A.3d 1247 (2018). Following oral argument, however, this court requested that the parties file supplemental briefs on the issue the Appellate Court had previously passed upon: whether there was an appealable final judgment. Additional facts will be set forth as necessary.

         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 § 51-199 (c). We conclude that we have such jurisdiction.

         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, § 51-199 (c) provides no procedure by which this court may later review the Appellate Court's judgment on a transferred writ of error.[2] He further contends that even if this court retains jurisdiction over his transferred writ of error, it lacks jurisdiction to grant certification to appeal pursuant to General Statutes § 51-197f because that statute applies only to appeals, not writs of error. The town counters that, pursuant to § 51-199 (a), this court has ‘‘final and conclusive'' jurisdiction over all writs of error, even those transferred to the Appellate Court, and that we should interpret the term ‘‘appeal'' in § 51-197f broadly to encompass the judgment of the Appellate Court on a transferred writ of error. We agree with the town.

         ‘‘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-§ 51-197f, regarding certification to appeal and § 51-199, regarding the Supreme Court's authority over writs of error.

         ‘‘When construing a statute . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.'' (Internal quotation marks omitted.) Callaghan v. Car Parts International, LLC, 329 Conn. 564, 570-71, 188 A.3d 691 (2018). In determining whether the statutory language is plain and unambiguous, ‘‘words and phrases [must] be construed according to the commonly approved usage of the language . . . . General Statutes § 1-1 (a). We ordinarily look to the dictionary definition of a word to ascertain its commonly approved usage.'' (Internal quotation marks omitted.) State v. Gelormino, 291 Conn. 373, 380, 968 A.2d 379 (2009). Additionally, we must construe the statute in conformity with prior case law interpreting it. See State v. Moreno-Hernandez, 317 Conn. 292, 299, 118 A.3d 26 (2015) (‘‘[i]n interpreting the [statutory] language . . . [we] are bound by our previous judicial interpretations of the language and the purpose of the statute'' [internal quotation marks omitted]). If, however, after examining the ordinary meaning of the words used in the statute and considering their meaning in light of prior cases interpreting the statute, ‘‘the statutory text at issue is susceptible to more than one plausible interpretation, we may appropriately consider extratextual evidence.'' (Internal quotation marks omitted.) Callaghan v. Car Parts International, LLC, supra, 571.

         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.

         Section 51-199 contains four subsections, only three of which are relevant to our analysis. Subsection (a) provides that ‘‘[t]he Supreme Court shall have final and conclusive jurisdiction of all matters brought before it according to law, and may carry into execution all its judgments and decrees and institute rules of practice and procedure as to matters before it.'' (Emphasis added.) Subsection (b) then specifies which matters must be brought directly to the Supreme Court according to law, including writs of error. See General Statutes § 51-199 (b) (‘‘[t]he following matters shall be taken directly to the Supreme Court . . . writs of error''). This statutory provision codifies the historical and well established common-law rule that ‘‘this court [has] common-law jurisdiction over writs of error . . . .'' State v. Skipwith, 326 Conn. 512, 521, 165 A.3d 1211 (2017); see also State v. Assuntino, 173 Conn. 104, 110-12, 376 A.2d 1091 (1977) (‘‘It is clear that the common-law writ of error was adopted by Connecticut as part of its own common law. No statute has expressly abrogated that law. . . . [T]he writ, at common law, lies to this court from a judgment of the Court of Common Pleas.'' [Citations omitted.]). Thus, when a writ of error is filed with this court-as this one was- subsections (a) and (b) of § 51-199 together clearly and explicitly grant this court ‘‘final and conclusive jurisdiction'' over it.

         Finally, subsection (c) of § 51-199 permits the Supreme Court to transfer ‘‘causes, '' including writs of error, from itself to the Appellate Court and, conversely, from the Appellate Court to itself: ‘‘The Supreme Court may transfer to itself a cause in the Appellate Court. . . . [T]he Supreme Court may transfer a cause or class of causes from itself . . . to the Appellate Court. The court to which a cause is transferred has jurisdiction.'' See State v. Skipwith, supra, 326 Conn. 515 n.3 (including writ of error as cause that may be transferred from Supreme Court to Appellate Court under § 51-199 [c]); Maurice v. Chester Housing Associates Ltd. Partnership, 188 Conn.App. 21, 24 n.5, 204 A.3d 71 (2019) (same). This plain and unambiguous language makes clear that subsection (c) expands the jurisdiction of the Appellate Court; it does not limit the jurisdiction of the Supreme Court.

         Specifically, subsection (b) of § 51-199 requires that writs of error be brought directly to the Supreme Court, and, thus, the Appellate Court normally lacks jurisdiction over them. Subsection (c) of § 51-199, however, extends the Appellate Court's jurisdiction to hear and decide writs of error if the Supreme Court has transferred a writ of error to the Appellate Court. But even though the plain language of subsection (c) expressly expands the jurisdiction of the Appellate Court to include writs of error upon transfer, no language expressly divests this court of the ‘‘final jurisdiction'' over writs of error that subsection (a) of § 51-199 confers. See Callaghan v. Car Parts International, LLC, supra, 329 Conn. 571 (we must interpret text of statute itself in context of its relationship to other statutes); see also Fedus v. Planning & Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006) (to extent that statute limits or deprives court of jurisdiction, legislature's intent to do so must be explicitly expressed). ‘‘[I]n the absence of any constitutional provision or statute depriving this court of its common-law jurisdiction over ...


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