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JAMES M. MCCONNELL v. KATHLEEN A.

MCCONNELL ET AL.

(SC 19257)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued February 11—officially released April 21, 2015

Elizabeth M. Christofaro, with whom, on the brief,

were Mark R. Cramer and Lila M. McKinley, for the

plaintiffs in error (Andrews & Young, P.C., et al.).

Jane R. Rosenberg, assistant attorney general, with

whom, on the brief, was George Jepsen, attorney general, for the defendant in error.
Opinion

ESPINOSA, J. The dispositive question that we must

answer in this case is whether a trial court’s order

requiring attorneys who are not parties and who are not

representing parties to underlying litigation to appearin

court and subject themselves to examination, was a

final judgment that may be challenged by way of a writ

of error. This matter arises from an appeal brought by

James M. McConnell (McConnell) from an order of the

Probate Court authorizing certain distributions to Kathleen Anne McConnell Hewitt and Amy McConnell Sheridan from the John E. McConnell Living Trust (trust).

In that appeal, McConnell claimed that he was a beneficiary of the trust and that he had received no notice of

the proceedings that had resulted in the Probate Court’s

order. Concerned by this allegation, the defendant in

error, the Superior Court in the judicial district of New

London (trial court), issued an order to show cause

why McConnell’s appeal should not be sustained and

the Probate Court’s order vacated. The trial court

ordered the plaintiffs in error, Andrews & Young, P.C.,

Lois Andrews and James Young, who had represented

Hewitt in the Probate Court proceedings, to appear in

court at a hearing on the order to show cause. The

plaintiffs in error appeared at the hearing and were

subject to examination. Thereafter, the plaintiffs in

error filed this writ of error challenging the trial court’s

order that they appear in court. We conclude that the

order was not a final judgment and, therefore, may not

be challenged by way of a writ of error. Accordingly,

the writ of error must be dismissed.

The record reveals the following undisputed facts

and procedural history. In 2000, John E. McConnell

created the trust and named his three children, McConnell, Hewitt and Sheridan, as beneficiaries. In June,

2010, after learning that Sheridan, as cotrustee of the

trust, had distributed $409,000 from the trust to herself,

Hewitt filed in the Probate Court an application for a

trust accounting, reimbursement of the trust, removal

of a trustee, appointment of a successor trustee,

removal of the attorney in fact, a restriction on changing

the residence of John E. McConnell, and for payment

of attorney’s fees (application). The plaintiffs in error

represented Hewitt during proceedings on the application in the Probate Court. On January 25, 2011, the

Probate Court approved a stipulated agreement, pursuant to which Hewitt would receive $600,000 from the

trust, plus attorney’s fees, Sheridan would receive

$166,000 from the trust and would be permitted to keep

$409,000 that had previously been distributed to her,

and McConnell would receive $35,000.

Although McConnell was a trust beneficiary and had

an interest in the proceedings on Hewitt’s application,

McConnell was not named as an interested party in the

application and did not receive notice of the Probate
Court proceedings. McConnell first learned of the proceedings in October, 2011, at which time he contacted

the Probate Court. On December 8, 2011, the Probate

Court held a status conference. On that same date, the

Probate Court issued an order, stating that ‘‘McConnell

is satisfied with the results from the status hearing and

as such the [trust] file shall be [c]losed and [r]ecorded.’’

McConnell then appealed to the trial court from the

Probate Court’s January 25 and December 8, 2011

orders, claiming that he had not been listed as an interested party or beneficiary in Hewitt’s application, that

he had not received notice of the proceedings and that

he would not have consented to the terms of the stipulated agreement if he had had the opportunity to participate. McConnell’s complaint and reasons for appeal

named Richard M. Hoyt, Jr., the current trustee of the

trust, and Hewitt and Sheridan as defendants. Thereafter, the trial court ordered ‘‘interested parties . . .

to show cause why the [appeal] should not be sustained

and the decrees/orders of the Probate Court entered/

dated January 25, 2011, and December 8, 2011, be

vacated.’’ In the order to show cause, the court stated

that, on the basis of the evidence that it had reviewed

to date, the court could find that Hewitt, Sheridan and

their attorneys had failed to alert the Probate Court

that McConnell, as a trust beneficiary, was entitled to

notice of the proceedings on Hewitt’s application,

despite their statutory duty to do so. The court found

that the failure of the attorneys to comply with rule 3.3

of the Rules of Professional Conduct governing candor

toward the tribunal had induced the Probate Court to

commit reversible error. On September 30, 2013, the

trial court ordered that the show cause order be sent

to Andrews & Young, P.C., and to other attorneys who

had been involved in the proceedings in the Probate

Court. On October 17, 2013, the trial court ordered that

the hearing on the order to show cause would continue

on October 22, 2013, and ordered the plaintiffs in error

and the other attorneys to appear at the hearing and

to bring their files relating to the Probate Court proceedings.

On October 22, 2013, the plaintiffs in error filed a

motion to vacate the order requiring them to appear

and for a protective order. On that same date, counsel

for the plaintiffs in error appeared at the scheduled

hearing and stated that, because the plaintiffs in error

had not been served with a subpoena to appear and

the trial court did not have the authority to order nonparties to appear in court without proper service of a

subpoena, the plaintiffs in error were not in attendance.

The trial court then ordered the clerk of the court to

prepare a capias for Andrews and Young. The court also

denied the motion to vacate and for a protective order.

To avoid being arrested pursuant to the capias,

Andrews and Young appeared in court and advised the
trial court that, by doing so, they were not waiving their

position that the trial court did not have the authority to

order their appearance. Andrews and Young ultimately

testified about their involvement in the proceedings

before the Probate Court over the course of two days.

Hewitt and Sheridan were also called as witnesses, but

they both refused to testify after invoking their fifth

amendment right against self-incrimination.

Thereafter, the plaintiffs in error filed this writ of

error contending that the trial court did not have the

authority to order them to appear at the hearing on the

order to show cause. The trial court contends that its

order requiring the plaintiffs in error to appear in court

was not a final judgment and, therefore, may not be

challenged by way of a writ of error. In response, the

plaintiffs in error contend that the order of the trial

court was a final judgment because it ‘‘terminat[ed] a

separate and distinct proceeding . . . .’’ (Internal quotation marks omitted.) State v. Curcio, 191 Conn. 27, 31,

463 A.2d 566 (1983); id. (‘‘[a]n otherwise interlocutory

order is appealable in two circumstances: [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’’). We agree with the trial court.

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 superior court to the supreme

court in the following cases: (1) a decision binding

on an aggrieved nonparty; (2) a summary decision of

criminal contempt; (3) a denial of transfer of a small

claims action to the regular docket; and (4) as otherwise

necessary or appropriate in aid of its jurisdiction and

agreeable to the usages and principles of law.’’ (Emphasis added.) The lack of a final judgment deprives this

court of subject matter jurisdiction over a writ of error.

See Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488,

498, 736 A.2d 851 (1999) (‘‘[j]ust as an appeal, a writ of

error requires a final judgment as a predicate’’); see

also State v. Fielding, 296 Conn. 26, 38, 994 A.2d 96

(2010) (‘‘absence of a final judgment is a jurisdictional

defect that [necessarily] results in a dismissal of the

appeal’’ [internal quotation marks omitted]).

Both parties in the present case agree that the trial

court’s order requiring the plaintiffs in error to appear

in court and its denial of their motion to vacate and

for a protective order were akin to discovery orders,

and that discovery orders generally are considered

interlocutory. See Green Rock Ridge, Inc. v. Kobernat,

supra, 250 Conn. 498 (‘‘[a]n order issued upon a motion

for discovery is ordinarily not appealable because it

does not constitute a final judgment’’ [internal quotation

marks omitted]). The plaintiffs in error contend, however, that, pursuant to this court’s decision in Woodbury

Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn.
750, 48 A.3d 16 (2012), a discovery order directed at a

nonparty is a final judgment because it satisfies the first

prong of Curcio. In Woodbury Knoll, LLC, the plaintiff

in error, Finn, Dixon & Herling, LLP (Finn Dixon), had

been served with a subpoena duces tecum in a case in

which its former clients, Woodbury Knoll, LLC, Woodbury Knoll II, LLC, Paredim Partners, LLC and David

Parisier (collectively, the Woodbury Knoll parties), had

alleged legal malpractice against anotherlaw firm, Shipman & Goodwin, LLP (Shipman). Id., 752–53. Finn

Dixon and the Woodbury Knoll parties filed objections,

motions to quash the subpoena and motions for protective orders, claiming that much of the material sought

by Shipman was covered by the attorney-client privilege

and the attorney work product doctrine. Id., 753–54.

Shipman objected to the motions to quash and for a

protective order and filed a motion to compel production of the requested materials. Id., 754. The trial court

ultimately granted Shipman’s motion to compel. Id. Finn

Dixon then filed a writ of error challenging the order

of the trial court, and Shipman claimed that the writ

of error should be dismissed forlack of a final judgment.

Id., 754–55. This court concluded that because Finn

Dixon was a nonparty to the underlying action and was

‘‘not involved in any way with the lawsuit between the

[Woodbury Knoll parties] and [Shipman]’’; id., 762; ‘‘the

discovery order . . . is a final judgment because it satisfies the first prong of Curcio . . . .’’ Id.; see also State

v. Curcio, supra, 191 Conn. 31 (‘‘[a]n otherwise interlocutory order is appealable . . . where the order or

action terminates a separate and distinct proceeding’’).

We have recently clarified, however, that our holding

in Woodbury Knoll, LLC, that the relevant discovery

order was a final judgment under the first prong of

Curcio and, therefore, could be challenged by way of

a writ of error, was not based solely on the fact that

Finn Dixon was a nonparty to the underlying action,

but was also based on the fact that ‘‘the discovery order

. . . was not intertwined with the underlying proceeding.’’ Niro v. Niro, 314 Conn. 62, 71 n.4, 100 A.3d 801

(2014). We further explained in Niro that 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. Id., 69 (‘‘we conclude

that the [discovery] order did not arise from a separate

and distinct proceeding because the personal records

and documents to which it was directed are required

by the trial court in order to resolve the underlying

action’’).

In the present case, the trial court ordered the plaintiffs in error to appear in court so that they could be

examined about certain events that took place during

the Probate Court proceedings on Hewitt’s application.

Because both Hewitt and Sheridan had invoked their
fifth amendment right not to testify at the hearing on

the order to show cause, the attorneys for the parties

to the Probate Court proceedings were a critical source

of information regarding the failure to give notice of

those proceedings to McConnell. Thus, the discovery

order was directed at materials that were required by

the trial court in order to resolve the issues raised in

McConnell’s appeal and, therefore, the order was inextricably intertwined with the underlying proceeding.

Accordingly, we conclude that the trial court’s discovery order did not constitute a final judgment under the

first prong of Curcio merely because the plaintiffs in

error were not parties to McConnell’s appeal.

The plaintiffs in error also claim, however, that there

are important policy considerations that militate in

favor of allowing them to bring this writ of error because

the trial court’s order implicated the attorney-client

privilege. They again rely on this court’s decision in

Woodbury Knoll, LLC. See Woodbury Knoll, LLC v.

Shipman & Goodwin, LLP, supra, 305 Conn. 769

(‘‘there are strong policy considerations for excepting

a nonparty attorney asserting a claim of privilege from

the ordinary rule requiring a party to be held in contempt prior to being able to challenge a discovery

order’’). In Woodbury Knoll, LLC, however, the trial

court had expressly rejected Finn Dixon’s claim that

the privileged materials could not be disclosed, and

ordered their disclosure. Id., 755. In contrast, the trial

court in the present case did not expressly order the

production of privileged information, but sustained the

specific objections of the plaintiffs in error that were

based on the attorney-client privilege. We recognize

that, on at least one occasion, the trial court rejected

a claim that certain information was privileged and

required its disclosure. We decline, however, to extend

our holding in Woodbury Knoll, LLC, that a discovery

order expressly requiring nonparty attorneys to produce information that is indisputably subject to the

attorney-client privilege constitutes a final judgment,

to rulings on disputes as to whether a specific item of

information is subject to the attorney-client privilege.

As this court previously has stated, ‘‘[t]he opportunities

for delay that would become available if every disclosure order that might arguably implicate the attorneyclient privilege could be appealed before trial are overwhelming to contemplate.’’ Melia v. Hartford Fire Ins.

Co., 202 Conn. 252, 258, 520 A.2d 605 (1987). Moreover,

even if the information that the trial court required the

plaintiffs in errorto disclose were privileged, immediate

review of the specific ruling could provide no relief

because the information has already been disclosed,

and there is no ‘‘clear and definite discovery order’’

requiring the disclosure of additional privileged materials. Woodbury Knoll, LLC v. Shipman & Goodwin, LLP,

supra, 761. Accordingly, we conclude that the trial

court’s order requiring the plaintiffs in error to appear
at the show cause hearing and to bring their client files

was not a final judgment from which a writ of error

may be brought.

The writ of error is dismissed.

In this opinion the other justices concurred.