2011 Ct. Sup. 10031
No. FST CV 09-5012939 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
April 21, 2011
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR REARGUMENT OF MARCH 21, 2011 ORDER AND DECISION AND FOR A STAY DATED APRIL 4, 2011 (#252.00)
HON. KEVIN TIERNEY, Judge Trial Referee.
This motion requests two separate forms of relief. The court will treat the above motion as two separate motions: a Motion to Reargue this court’s March 21, 2011 Memorandum of Decision and a Motion for a Stay of Execution of the March 21, 2011 Memorandum of Decision during the defendant’s appeal.
Motion to Reargue
The court granted reargument pursuant to P.B. § 11-12(c). The issue in chief was assigned for a hearing on April 11, 2011. Both parties appeared and oral argument was completed. Neither party offered any evidence or testimony on the Motion to Reargue.
The court finds that the Motion to Reargue was timely filed and sets forth the decision which is the subject of the motion and the name of the judge who issued it. P.B. § 11-12(c). Although the Motion to Reargue did not state “the specific grounds for reargument upon which the party relies” as required by P.B. § 11-12(a), the defendant’s simultaneous memorandum (#253.00) and oral argument set forth the specific grounds. The court finds that the defendant’s Motion to Reargue was timely filed and procedurally correct.
The court has applied the well known standards on a motion to reargue Opoku v. Grant, 63 Conn.App. 686, 692-93 (2001). After due consideration of the issues before the court, this court’s 14-page March 21, 2011 Memorandum of Decision (#237.00) on the underlying Plaintiff’s Motion for Disclosure of Assets, this court’s order of March 21, 2011 (#231.86), the defendant’s Motion to Reargue and its supporting Memorandum and the parties oral argument, the court enters the following order on the Motion to Reargue (#252.00): CT Page 10032
The court grants reargument pursuant to P.B. § 11-12(c) and upon reargument denies the relief requested as to the March 21, 2011 Order (#231.86) and this court’s March 21, 2011 Memorandum of Decision (#237.00).
Motion for Stay
The court issued its Memorandum of Decision on Plaintiff’s Motion for Disclosure of Assets on March 21, 2011 (#237.00) and entered a March 21, 2011 Order (#231.86). The defendant filed an appeal therefrom with the Appellate Court on March 28, 2011 (#249.00) in the New Haven Superior Court Chief Clerk’s Office. Since the underlying issue involved a disclosure of assets supporting a pre-judgment remedy, the defendant’s appeal had to comply with the limited appeal statute. “No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.” Gen. Stat. § 52-278l(b). Another stamp appears on the top of the appeal form dated March 29, 2011. This court has insufficient information upon which it can conclude that the defendant’s appeal (#249.00) was timely filed in accordance with Gen. Stat. § 52-278l(b).
The single motion containing the dual relief of reargument and stay (#252.00) contains the following claim: “Argent also moves for a stay of enforcement of the Order pending appeal.” The court is treating this portion of motion (#252.00) as a Motion for Stay of Execution. The court is required to issue a written decision on all motions for stay of execution. P.B. § 6-1, P.B. § 64-1(a)(1). The standards that this court is applying on the defendant’s motion for stay of execution are set forth in Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 456 (1985). There are four factors that the court must consider in a decision on a stay. The first factor is “the likelihood that the appellant will prevail.” Id. 456.
The proceeding before this court involves a PJR order entered by this court after a ten-day hearing. A Memorandum of Decision was issued on June 1, 2010 (#167.00). Neither party appealed. The last nine months have been spent by this court on post-PJR asset discovery proceedings in conformity with Gen. Stat. § 52-278n. There is no automatic stay of execution in a PJR matter. “No such order shall be stayed by the taking of an appeal except upon the order of the judge who made such order . . .” Gen. Stat. 52-278l(c).
Essentially the defendant’s appeal is taken from a discovery order.
CT Page 10033
An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions. Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478
(1980); see also Presidential Capital Corp. v. Reale, 240 Conn. 623, 625, 692 A.2d 794 (1997) (“[t]he general rule established by our case law is that an interlocutory order requiring a witness to submit to discovery is not a final judgment and, therefore, is not immediately appealable”). “[W]e require that those ordered to comply with discovery be found in contempt of court before we consider an appeal . . .” Barbato v. J. M. Corp., 194 Conn. 245, 249 478 A.2d 1020
(1984).
Although this sanctions order was not itself a discovery order, it was an order for sanctions for failure to comply with the discovery procedure of a deposition. We can perceive no reason or policy why we should treat the sanctions order differently, for purposes of finality of judgment, from the discovery procedure of which it is a part. We, therefore, regard it as governed by the same principles of finality as discovery orders. Accordingly, we conclude that, in order for a deponent to challenge such a sanctions order by a writ of error, it is necessary for him to refuse to comply and be held in contempt therefor.
Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 498 (1999)
“The initial determination of discovery orders does not so conclude the rights of the appealing party that further proceedings cannot affect those rights.” Barbuto v. J. M. Corporation, 194 Conn. 245, 249
(1984).
The court finds that there is no likelihood that the appellant (the defendant) will prevail on appeal. The court denies the Defendant’s Motion for Stay of Execution dated April 4, 2011 (#252.00).
CT Page 10034