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SANDY NIRO v. PETER NIRO, JR.

(SC 19045)

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

Argued January 16—officially released October 14, 2014

Joseph E. Faughnan, with whom, on the brief, were

Philip G. Kent and Gregory P. Muccilli, forthe plaintiffs

in error (Anthony Niro and Nanette Niro).

Steven R. Dembo, with whom were Caitlin Kozloski

and, on the brief, P. Jo Anne Burgh, for the defendant

in error (Sandy Niro).

Lisa A. Magliochetti, forthe defendant in the underlying action (Peter Niro, Jr.).
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 financialrecords. 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., 31. 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 matterjurisdiction 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. 31]. . . . 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 a

colorable claim that some recognized statutory or constitutional right is at risk. . . . Moreover, when a statute vests the trial court with discretion to determine if

a particular [party] is to be accorded a certain status,

the [party] may not invoke the rights that attend the

status as a basis for claiming that the court’s decision

not to confer that status deprives the [party] of protections to which [it] is entitled. . . . The right itself must

exist independently of the order from which the appeal

is taken.’’ (Citations omitted; internal quotation marks

omitted.) Abreu v. Leone, 291 Conn. 332, 338–40, 968

A.2d 385 (2009).

In the present case, it is undisputed that the trial

court’s order of production was an interlocutory ruling.

Accordingly, this court has jurisdiction over the plaintiffs’ writ of error only if the order satisfies the first or

second prong of Curcio.

With respect to the first prong, even if we presume

that the trial court’s production order was ‘‘a clear and

definite discovery order . . . based on the . . .

court’s final and comprehensive ruling’’; Woodbury

Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn.

750, 761, 48 A.3d 16 (2012); see id., 761–62 (discussing

elements necessary to satisfy first prong of Curcio);

we conclude that the 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. See Abreu v. Leone, supra, 291 Conn. 339.

Section 46b-81 (a) provides in relevant part: ‘‘At the

time of entering a decree . . . dissolving a marriage

. . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other.

The court may pass title to real property to either party

or to a third person or may order the sale of such real

property . . . when in the judgment of the court it is

the proper mode to carry the decree into effect.’’ In

furtherance of this objective, Practice Book § 25-30 (a)

requires the parties to a dissolution action to file with

the court a sworn statement of current income,

expenses, assets and liabilities. Thus, in order for the

trial court to perform its statutory duty of dividing the
marital estate in a fair and equitable manner, it must

have a proper understanding of the parties’ assets.

As previously discussed, the defendant and Peter

Niro claim that the plaintiffs and other family members

have misappropriated a substantial share of Peter Niro’s

business assets.3 Accordingly, the trial court must have

access to the personal records listed in the plaintiffs’

privilege log because they may contain information

relating to the allegedly misappropriated assets. In

other words, without the information contained in the

subpoenaed records, the trial court will be unable to

determine the true extent and value of the marital estate

and, therefore, will be unable to perform its statutory

duty of equitably distributing the marital assets in the

underlying dissolution action.

The present case is distinguishable from other cases

in which we determined that a discovery order did not

interfere with the underlying proceeding. For example,

in Woodbury Knoll, LLC, the plaintiffs in the underlying

action (Woodbury Knoll) hired the plaintiff in error,

Finn, Dixon & Herling, LLP (Finn Dixon), to bring a

legal malpractice action against the defendants in error,

Shipman & Goodwin, LLP (Shipman), and Carolyn

Cavolo, who also were the defendants in the underlying

action, for negligent misrepresentation in connection

with certain real estate transactions. Woodbury Knoll,

LLC v. Shipman & Goodwin, LLP, supra, 305 Conn.

752–53. Woodbury Knoll was specifically seeking reimbursement for damages incurred because of Shipman’s

and Cavolo’s failure to discover certain fraud for which

Woodbury Knoll incurred damages, ‘‘which consisted

of settlement payments in the amount of $2,917,000 and

attorney’s fees paid to Finn Dixon in the amount of

$1,371,647.60 . . . .’’ Id., 753. Following commencement of the underlying action, Shipman and Cavolo

served a notice of deposition and a subpoena duces

tecum on the custodian of Finn Dixon’s records, seeking

all records and documents relating to Finn Dixon’s representation of Woodbury Knoll in the underlying action

up to the date of the subpoena. See id. After Finn Dixon

and Woodbury Knoll moved to quash the subpoena and

for protective orders, Shipman and Cavolo objected

and moved to compel production of the records and

documents. Id., 754. The trial court ultimately overruled

Finn Dixon’s objection to the subpoena, denied its

motion to quash, and granted Shipman and Cavolo’s

motion to compel (discovery order). Id. Finn Dixon

then brought a writ of error to this court, claiming that

the trial court’s discovery order was improper. Id. In

considering whether the discovery order satisfied the

first prong of Curcio, we concluded that the orderterminated a separate and distinct proceeding not only

because it was ‘‘clear and definite’’ and was based on

a ‘‘final and comprehensive ruling’’; id., 761; but also,

significantly, because ‘‘Finn Dixon [was] not involved

in any way with the lawsuit between [Woodbury Knoll]
and [Shipman and Cavolo]. Finn Dixon [was] involved

only insofar as its records custodian [had] been ordered

to comply with the discovery order.’’ Id., 762. We therefore granted the writ of error.4

Id., 786.

Similarly, in Briggs v. McWeeny, 260 Conn. 296, 298,

796 A.2d 516 (2002), the plaintiff in error, Carole W.

Briggs, an attorney, brought a writ of error challenging

the findings of the defendant in error, Honorable Robert

F. McWeeny (Judge McWeeny), that she had violated

the Rules of Professional Conduct in her representation

of the plaintiff in the underlying action (Amity High

School) and Judge McWeeny’s order disqualifying her

from continuing to represent Amity High School in the

pending litigation. Id., 298–99. The challenged findings

included that Briggs had obstructed another party’s

access to evidence and had asked a person other than

a client to refrain from giving relevant information to

another party. See id., 304–305. Judge McWeeny claimed

that the disqualification order was an interlocutory

order from which Briggs could not appeal because it

was intertwined with the central evidentiary issue in

the underlying litigation. Id., 313–14. We disagreed, concluding that the focus of the misconduct proceeding

was not on the disputed evidentiary issue in the underlying litigation but on Briggs’ attempt to alter, destroy or

conceal a document with potential evidentiary value.

Id., 315–16. We further observed that the fact that the

sanction had taken effect immediately ratherthan being

delayed until the conclusion of the trial counseled

against a finding that the disqualification order was so

intertwined with the underlying proceeding that it did

not constitute a final judgment. Id., 316.

The discovery order in the present case, unlike the

orders in Woodbury Knoll, LLC, and Briggs, is intertwined with the underlying dissolution proceeding

because the information subject to disclosure will contribute to the trial court’s knowledge of Peter Niro’s

assets and its ability to perform its statutory duty of

equitably distributing the marital estate pursuant to

§ 46b-81. Accordingly, we conclude that the trial court’s

order of production does not satisfy the first prong

of Curcio.

We further conclude that the order does not satisfy

the second prong of Curcio because it does not so

conclude the rights ofthe plaintiffs that further proceedings will not affect them. Ordinarily, ‘‘if a witness asserts

a privilege to withhold testimony to which the court

and the parties may be entitled, and the court does

not uphold that privilege, the witness’ only access to

appellate review is to appeal a finding of contempt.

. . . The scope of appellate review of such a contempt

finding would be sufficiently broad to encompass many

claims of error which may not appear on their face to

be jurisdictional in nature.’’ (Citation omitted; internal

quotation marks omitted.) Presidential Capital Corp.
v. Reale, 240 Conn. 623, 630, 692 A.2d 794 (1997).

In the present case, the trial court’s order of production does not so conclude the rights of the plaintiffs

that further proceedings will not affect them because

the plaintiffs may continue to disobey the order of production and be held in contempt. See Barbato v. J. &

M. Corp., 194 Conn. 245, 249, 478 A.2d 1020 (1984)

(order granting application to compel testimony ‘‘does

not so conclude the rights of the appealing party that

further proceedings cannot affect those rights’’ [internal

quotation marks omitted]). ‘‘A judgment of contempt

is a final, reviewable judgment.’’ Id., 250. As a result,

further proceedings are available from which the plaintiffs may appeal without having to reveal the contents of

the records. See id., 251 (privileged information sought

remains confidential throughout contempt proceeding).

The writ of error is dismissed.

In this opinion ROGERS, C. J., and PALMER, EVELEIGH and ESPINOSA, Js., concurred.

1 Sandy Niro and Peter Niro, Jr. (Peter Niro), are the plaintiff and the

defendant,respectively, in the underlying marital dissolution action. In October, 2012, Sandy Niro and Peter Niro filed separate motions to dismiss the

plaintiffs’ writ of error for lack of a final judgment, which we denied without

prejudice on December 12, 2012. We also denied the plaintiffs’ motion to

strike Peter Niro’s October 25, 2012 statement of alternative grounds for

affirmance of the trial court’s order, in which the plaintiffs argued that Peter

Niro did not become a party to the writ of error when they served him

pursuant to Practice Book § 72-3 (c) with a copy of the writ that had been

served on Sandy Niro. We now conclude, however, that Peter Niro is not

a proper party to the writ of error because the rules of practice do not

provide that, by serving a party in the underlying action with a copy of the

writ of error, the party also becomes a party to the writ of error. Accordingly,

we have not considered Peter Niro’s brief in reaching our decision on the

plaintiffs’ writ of error.

2

In the related civil action brought by Peter Niro against Anthony Niro,

Peter Niro claimed that Anthony Niro and Nanette Niro misappropriated

funds from the jointly owned businesses.

3 As previously noted, the defendant’s misappropriation claim is also the

basis for a corresponding civil action that is pending. See footnote 2 of

this opinion.

4 Although the court did not discuss whether the information sought in

the discovery order was ‘‘intertwined’’ with the underlying proceeding, we

note that, because Woodbury Knoll was seeking damages for expenses

already incurred, the court did not need the information subject to the order

to resolve the issues in the underlying legal malpractice action. Accordingly,

the discovery order in Woodbury Knoll, LLC, was not intertwined with the

underlying proceeding.

We disagree with the concurring justice’s conclusion to the contrary and

with his assertion that the court should use this case to reconsider and

overrule its decision in Woodbury Knoll, LLC. In addition to the fact that

neither of the parties has raised or briefed this issue, it would make no

sense to reconsider our decision in Woodbury Knoll, LLC, in the present

case because our legal analysis and conclusions do not depend on whether

the discovery order in Woodbury Knoll, LLC, was intertwined with the

underlying action, but, rather, on the fact that the trial court needs the

personalrecords and documents sought by the defendant in orderto perform

its statutory duty under § 46b-81. It thus would be inappropriate for this

court to address the concurring justice’s contention that Woodbury Knoll,

LLC, should be overruled in the present case.