Date: 02-05-2008

Case Style: Ellen Palmer, et al. v. Friendly Ice Cream Corporation

Case Number: (SC 17735

Judge: Zarella

Court: Supreme Court of Connecticut on appeal from the Superior Court, judicial district of Danbury County

Plaintiff's Attorney: Deepak Gupta, pro hac vice, with whom were Daniel S. Blinn, Anthony J. Pantuso III and, on the brief, Brian Wolfman, pro hac vice, and Scott L. Nelson, pro hac vice, for the appellants (plaintiffs).

Defendant's Attorney: William C. Saturley, pro hac vice, with whom were Johanna G. Zelman and, on the brief, Michael J. Rose and Jeffrey A. Meyers, pro hac vice, for the appellee (defendant).

Description: The sole issue raised by this appeal is whether an order denying class certification is an appealable final judgment. The plaintiffs,1 thirty-seven persons employed as waiters or waitresses by the defendant, Friendly Ice Cream Corporation, appealed from the order of the trial court to the Appellate Court, which dismissed the appeal for lack of a final judgment. We granted the plaintiffs' petition for certification to appeal from the Appellate Court's judgment. The plaintiffs claim that a denial of class certification should be treated as a final judgment because such a denial meets the test for appealability of otherwise interlocutory orders. The plaintiffs claim that denial of class certification ends the claims of absentee plaintiffs and threatens rights they possess with respect to the class action. Because we conclude that the denial of class certification does not meet either prong of the Curcio2 test, we affirm the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The plaintiffs filed a class action complaint against the defendant on October 4, 2004. The trial court, in its memorandum of decision, noted that the plaintiffs sought certification as a class to pursue their claims that the defendant had ‘‘failed to pay servers the hourly, minimum wage mandated by General Statutes § 31-60 because the defendant unlawfully deducted ‘tip credits' from servers' wages'' for work that was ‘‘non-service'' in nature. The putative class includes ‘‘all current or former servers'' at the defendant's forty-eight restaurants in Connecticut ‘‘against whose wages tip credits were subtracted.''

The plaintiffs' complaint arose from the defendant's alleged violation of § 31-62-E4 of the Regulations of Connecticut State Agencies, which governs the payment of minimum wage for ‘‘[d]iversified employment within the restaurant industry . . . .''3 The complaint alleges that the defendant ‘‘failed to definitely segregate all of the time spent performing ‘non-service' duties and nevertheless took a ‘tip credit' with respect to most of the hours worked by [the plaintiffs] and the class members and failed to compensate them at the required full minimum wage for their entire shift.''

The trial court entered an order denying the plaintiffs' motion to certify the putative class on January 25, 2006. In its memorandum of decision, the court found that the plaintiffs had satisfied the requirements of numerosity, commonality, typicality and adequate representation enumerated in Practice Book § 9-7. The trial court concluded, however, that the plaintiffs had failed to meet the predominance requirement for class certification under Practice Book § 9-8.4 Specifically, the trial court determined that the evidence required to prove liability as to each member of the class was so individualized that class-wide issues did not predominate. The court concluded: ‘‘Our law, as explicated by [Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 880 A.2d 106 (2005)], would demand evidence . . . that each individual server of the proposed class performed specific, non-server duties during particular weeks within the pertinent time period. . . . The fact finder would need evidence as to each member of the class concerning what specific duties that member performed, and at what times, that required segregation before a tip credit was allowed.''

The plaintiffs appealed to the Appellate Court from the trial court's order denying the motion for class certification. The Appellate Court dismissed the appeal for lack of a final judgment. We granted certification to appeal from the judgment of the Appellate Court limited to the following issue: ‘‘Is an order denying a motion for class certification a final judgment for purposes of appeal?'' Palmer v. Friendly Ice Cream Corp., 280 Conn. 918, 908 A.2d 537 (2006).

We begin by setting forth the standard of review. ‘‘The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise plenary review].'' (Internal quotation marks omitted.) Pritchard v. Pritchard, 281 Conn. 262, 270, 914 A.2d 1025 (2007).

We commence the discussion of our appellate jurisdiction by recognizing that there is no constitutional right to an appeal. E.g., Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965); State v. Figueroa, 22 Conn. App. 73, 75, 576 A.2d 553 (1990), cert. denied, 215 Conn. 814, 576 A.2d 544 (1991). Article fifth, § 1, of the Connecticut constitution provides for a Supreme Court, a Superior Court and such lower courts ‘‘as the general assembly shall . . . ordain and establish,'' and that ‘‘[t]he powers and jurisdiction of these courts shall be defined by law.'' (Emphasis added.) To consider the plaintiffs' claims, we must apply the law governing our appellate jurisdiction, which is statutory. State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The legislature has enacted General Statutes § 52-263,5 which limits the right of appeal to those appeals filed by aggrieved parties on issues of law from final judgments. Unless a specific right to appeal otherwise has been provided by statute, ‘‘we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.'' (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 733–34, 818 A.2d 731 (2003); see also State v. Curcio, supra, 30 (right of appeal ‘‘is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met''). Further, we have recognized that limiting appeals to final judgments ‘‘serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings.'' (Internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 225, 901 A.2d 1164 (2006). As it is relevant to this appeal, we note that the statute permitting class actions is silent regarding interlocutory appeals from a trial court's decision whether to certify a class. See generally General Statutes § 52-105.6

The plaintiffs claim that we should recognize that a denial of class certification satisfies the test for the appealability of an otherwise interlocutory order.7 This court has determined that certain interlocutory orders are to be treated as final judgments for purposes of appeal. To determine whether an order should be treated as such, we apply a two-pronged test: ‘‘An 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.'' State v. Curcio, supra, 191 Conn. 31. Unless an order can satisfy one of these two prongs, the lack of a final judgment ‘‘is a jurisdictional defect'' that necessitates dismissal of the appeal. (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 734. Although an order that satisfies either prong will render it immediately appealable, the plaintiffs assert that the denial of class certification meets both prongs of the Curcio test. We disagree and analyze each prong respectively.

In order to satisfy the first prong of Curcio, the trial court's order must terminate a separate and distinct proceeding. State v. Curcio, supra, 191 Conn. 31. The plaintiffs claim that, ‘‘[b]ecause the order terminates the class action proceeding in its entirety and leaves only the named plaintiffs' individual actions, and because appeals from class certification decisions can proceed independently of litigation on the merits, the order is subject to immediate appeal.'' The defendant replies that a denial of class certification cannot satisfy the first prong of Curcio because it is not separate and distinct from the main action and because the determination of whether to certify a class directly impacts the litigation of the underlying action. We agree with the defendant.

Our case law defines the type of order that would terminate a separate and distinct proceeding and result in an immediate right to appeal. The judicial proceeding that triggers the appeal must be ‘‘independent of the main action.'' State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984). ‘‘The question to be asked is whether the main action could proceed independent[ly] of the ancillary proceeding.'' Id. A review of our prior cases reveals only a few examples of orders that we deem to terminate a separate and distinct proceeding, thereby satisfying the first prong of Curcio.

In Briggs v. McWeeny, 260 Conn. 296, 314, 796 A.2d 516 (2002), the plaintiff in error, Carole W. Briggs, brought a writ of error, challenging a trial court's order disqualifying her from appearing as an attorney on behalf of a school district in an action concerning damage to one of the school district's buildings. Id., 306–307. The trial court found that Briggs had violated the Rules of Professional Conduct by attempting to suppress the findings of an engineering report indicating that the school district was responsible, in part, for the building damage at issue in the litigation. See id., 303–305. We concluded that an order disqualifying an attorney from representing a party in the underlying litigation is separate and distinct. Id., 314. In analyzing the first prong of Curcio, we considered whether the disqualification proceeding was ‘‘so intertwined'' with the underlying litigation that it could not be considered separate and distinct. Id. We rejected the suggestion of the defendant in error that the alleged misconduct was factually intertwined with the central issue in the underlying litigation, namely, the cause of the building damage. Id., 314, 316. In reaching our conclusion, we were persuaded by the fact that ‘‘the trial court carved out a separate and distinct proceeding at which it addressed the allegations of professional misconduct''; id., 314; the fact that the underlying ‘‘litigation had continued notwithstanding the . . . disqualification''; id.; and ‘‘[t]he fact that the sanction took effect immediately, as opposed to being delayed until the end of trial . . . .'' Id., 316. Unlike the determination of whether to disqualify an attorney, which, in Briggs, we concluded was not intertwined with the underlying litigation, a determination of whether to certify a class is intricately intertwined with the facts of the underlying lawsuit. Both the United States Supreme Court and this court have recognized that the determination of whether a putative class meets the requirements necessary to proceed as a class is intimately connected to the adjudication of liability. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978); Collins v. Anthem Health Plans, Inc., supra, 275 Conn. 321 (recognizing that ‘‘class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the [plaintiffs'] cause of action'' [internal quotation marks omitted]). In Briggs, the disqualification order was tantamount to a final judgment as to the attorney. An order denying class certification, however, does not resolve any issue with similar finality. As we concluded in Rivera, an order as to class certification is reviewable by the trial court throughout litigation. See Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 744 (‘‘it is within the purview of the trial court to revisit the issue of class certification''). Furthermore, upon denial of class certification, the named plaintiffs' lawsuit proceeds, and putative class members retain the freedom to file their own lawsuit or to seek to intervene in the ongoing litigation.

The United States Supreme Court's decision in Coopers & Lybrand provides additional guidance as to whether denials of class certification meet our test for appealability under the first prong of Curcio. The issue in that case was whether an order denying class certification was immediately appealable under the collateral order exception to the federal final judgment rule.9 Coopers & Lybrand v. Livesay, supra, 437 U.S. 464–65; see 28 U.S.C. § 1291 (2000). The court held that it was not. Coopers & Lybrand v. Livesay, supra, 465. The court's analysis under the collateral order exception is akin to the jurisdictional analysis that we employ under the first prong of Curcio. Similar to the first prong of Curcio, the collateral order exception permits an immediate appeal when the order ‘‘conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.'' (Citation omitted.) Id., 468.

The United States Supreme Court observed that an order denying class certification ‘‘does not fall in [the] category''; id., 469; of the ‘‘ ‘small class' of decisions excepted from the final-judgment rule . . . .'' Id., 468. ‘‘First, such an order is subject to revision in the District Court. . . . Second, the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action. . . . Finally, an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members.'' (Citations omitted; internal quotation marks omitted.) Id., 469. We agree with this analysis. Therefore, we conclude that the denial of class certification does not constitute the termination of a separate and distinct proceeding because it is too intertwined with the named plaintiffs' lawsuit and is an order capable of review after a final judgment in that lawsuit. Additionally, we note that an appeal from a trial court's order denying class certification in all probability would result in delay of the underlying litigation. In Hartford Accident & Indemnity Co., we observed that an appeal that, if successful, would result in a delay or possible end to the underlying litigation ‘‘in no way constitute[s] a ‘separate and distinct proceeding' . . . .'' Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., supra, 279 Conn. 229–30. As a practical matter, the trial court's determination of whether a lawsuit may proceed as a class action impacts the number of plaintiffs, the defenses raised, the scope of discoverable information and the settlement posture of the parties. If the named plaintiffs' lawsuit (or that of any putative class member) were to proceed during an appeal of an order denying class certification, any subsequent reversal would negate the progress achieved in those lawsuits. For example, the class members would be entitled to notice of the resulting class action, and the defendant would be entitled to seek additional discovery.

Thus, the trial court's ability to adjudicate the underlying controversy effectively and efficiently pending the appeal of the class certification ruling would be impacted, and the determination of class certification cannot possibly be described as an ancillary proceeding.

The plaintiffs nevertheless argue that, with the adoption of rule 23 (f) of the Federal Rules of Civil Procedure, Coopers & Lybrand is no longer the law in federal courts. Subsequent to the decision in Coopers & Lybrand, rule 23 (f) was adopted to permit federal appellate courts to grant interlocutory appeals from denials of class certification on a discretionary basis.11 See Fed. R. Civ. P. 23 (f). The plaintiffs ask us to consider this as persuasive authority because we previously have acknowledged the similarities between federal court class action jurisprudence and our own, observing that we may look to federal case law for guidance. See Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 32–33, 836 A.2d 1124 (2003). We find this argument unpersuasive. Unlike the rules of civil procedure governing federal courts, there is no statutory authority granting appellate courts in Connecticut discretion to review interlocutorily denials of class certification.12 Our appellate jurisdiction is determined by the state constitution and statutes promulgated pursuant thereto; authority from other jurisdictions based on statutes or rules substantively different from ours is not persuasive. We are required to follow the dictates of the legislature with regard to our jurisdiction.

Having concluded that a denial of class certification does not satisfy the first prong of the Curcio test, we next turn our attention to the second prong. ‘‘The second prong of the Curcio test . . . 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. . . . In other words, the [appellant] must do more than show that the trial court's decision threatens him with irreparable harm. The [appellant] must show that that decision threatens to abrogate a right that he or she then holds. . . . 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.'' (Citations omitted; emphasis added; internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., supra, 279 Conn. 226–27.

‘‘We have said that the claimed right cannot be ‘a contingent right created by statute and subject to the discretion of the trial court' . . . .'' Id., 231. ‘‘[E]ven when an order impinges on an existing right, if that right is subject to vindication after trial, the order is not appealable under the second prong of Curcio.'' Id.

The plaintiffs claim that putative class members lose several rights as a result of a trial court's order denying class certification, and, therefore, the denial of class certification satisfies the second prong of Curcio. The plaintiffs argue that, upon the denial of class certification, the applicable statute of limitations begins to run again, whereas, prior to that denial, it had been tolled. They further claim that the denial raises the specter that principles of preclusion will bar their right to bring a separate class action and that the legal representation owed to all putative class members by the class representative is lost. The defendant argues, inter alia, that any ‘‘rights'' secured by an order certifying a class hinge on the discretion of the trial court, and, therefore, an order denying class certification fails to satisfy the second prong of Curcio. We agree with the defendant that a denial of class certification does not cause the putative class members to lose a secured statutory or constitutional right.

The plaintiffs cite Rivera to support their position under the second prong. In Rivera, we held that an order decertifying a class was immediately appealable under the second prong of Curcio. Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 734. We emphasized that a proper analysis under the second prong of Curcio ‘‘focuses on the nature of the right involved.'' (Internal quotation marks omitted.) Id. In that case, the plaintiffs secured the right to proceed as a class when the trial court initially ordered certification of the class. See id., 732. That right, which they already had secured, was lost when, two years later, the trial court ordered the class decertified. See id., 733. The plaintiffs rely on our holding in Rivera and argue that an order decertifying a class leaves the plaintiffs in the same position as an order denying class certification. We disagree.

As we noted previously, § 52-105 authorizes a trial court, in its discretion, to permit class representation.

It does not, however, require that a trial court do so or provide any guarantee to putative class members that a proposed class will be certified. We conclude that § 52-105 creates a statutory right to participate in a class action once a trial court deems it appropriate. ‘‘[W]hen the plaintiffs [in Rivera] were certified as a class by the trial court . . . they secured the right [pursuant to § 52-105] to proceed in a class action against the defendant. That right provided to the plaintiffs an economically efficient means to proceed in an action that they otherwise might [have been] unable to pursue.'' Id., 735. In Rivera, once the trial court exercised its discretion and ordered the class certified, the class members had a statutory right under § 52-105 to proceed as a class. That statutory right to proceed as a class was harmed by the subsequent decertification order and, as we concluded in Rivera, warranted that such an order be treated as a final judgment under the second prong of Curcio. See id., 734–36.

In the present case, the plaintiffs have not secured any constitutional or statutory right. Unlike the plaintiffs in Rivera, who had been certified as a class; id., 732; the plaintiffs in the present case have only sought certification. Furthermore, the plaintiffs have made no colorable claim that a right is at risk. The potential to proceed as a class rests on the exercise of a trial court's discretion. Thus, no right arises until the court exercises that discretion and issues an order certifying the class. See Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., supra, 279 Conn. 227 (noting that claimed right under Curcio cannot be contingent right subject to trial court's discretion).

Our appellate jurisdiction over a denial of a motion to intervene is consistent with our conclusion in this case.13 General Statutes § 52-10714 governs the intervention of nonparties to a lawsuit and, unlike § 52-105, provides for both permissive intervention and intervention as a matter of right. We have concluded that, under the second prong of Curcio, appellate jurisdiction is proper over an appeal from the denial of a motion to intervene as a matter of right but not over the denial of a motion for permissive intervention. See Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 449 n.3, 904 A.2d 137 (2006), citing Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291–92, 497 A.2d 780 (1985). Permissive intervention, like class certification, is contingent on a trial court's exercise of discretion, and putative permissive intervenors have no statutory right to intervene. See McClendon v. Soos, 18 Conn. App. 614, 616–17, 559 A.2d 1163, cert. denied, 212 Conn. 808, 563 A.2d 1356 (1989); Common Condominium Assns., Inc. v. Common Associates, supra, 291–92. In Common Condominium Assns., Inc., the Appellate Court observed that ‘‘[the] appealability of a trial court's action on a motion to intervene depend[s] on whether a person ha[s] an absolute right to intervene or whether intervention [is] a matter within the trial court's discretion.'' (Internal quotation marks omitted.) Common Condominium Assns., Inc. v. Common Associates, supra, 290. ‘‘Permissive intervention . . . is entrusted to the trial court's discretion . . . [and] depends on a balancing of factors . . . .'' Id.15 When prospective intervenors have not made a colorable claim to intervene as a matter of right, there is no right to interlocutory review of the order denying their motion to intervene. The Appellate Court has observed that, in that instance, ‘‘further proceedings can affect the [appellant's] rights with respect to the other litigants in the case; [the appellant] can, if his motion to intervene is denied, still vindicate those rights by bringing his own independent action.'' Id., 292. We conclude that putative class members, unlike intervenors as of right, do not possess a statutory right, at the time they seek certification, that satisfies the second prong of Curcio. Such a right arises only after a court has ordered certification. Similar to the Appellate Court's observation in Common Condominium Assns., Inc., regarding permissive intervenors; id.; further proceedings also can affect the rights of plaintiffs who are denied class certification because they may pursue their own individual actions against the defendant.

Nevertheless, the plaintiffs contend that a denial of class certification implicates rights associated with class status sufficient to satisfy the second prong of Curcio. They argue that the tolling of the statute of limitations on putative class members' claims is lost when the trial court denies class certification and that the denial ‘‘strips'' the putative class members of the protection afforded by the legal representation provided during certification proceedings. We disagree with the plaintiffs that either of these is a statutory or constitutional right that would satisfy the Curcio test.16 We have held that when a trial court has discretion to grant a certain legal status to a party, upon denial, a requesting party may not claim the loss of the rights attendant to that status to satisfy the second prong of Curcio. State v. Longo, 192 Conn. 85, 93, 469 A.2d 1220 (1984) (when ‘‘a decision has the effect of not granting a particular right, that decision . . . does not threaten . . . already existing rights''). When a trial court exercises its discretion to grant class certification, it confers on the named plaintiffs and putative plaintiffs the status of class members. Our law is clear that there are rights attendant to that class member status, for example, the right to have their interests ‘‘fairly and adequately protect[ed]'' by the class representative pursuant to Practice Book § 9-7 and the due process right to receive notice of the action and of any final judgment to which class members will be bound.

The plaintiffs correctly recognize that our case law also confers some benefits on putative class members attendant to the filing of the class complaint, for example, the fiduciary obligation that a purported representative owes to the putative class, as well as the tolling of the statute of limitations on their claims. These benefits are not, however, statutory or constitutional rights, like those attendant to class member status. Rather, these benefits derive from judicial doctrines that were adopted to prevent the ‘‘frustrat[ion] of the principal function of a class suit''; American Pipe&Construction Co. v. Utah, 414 U.S. 538, 551, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974); namely, to prevent absent parties from having to file a proliferation of individual suits to protect their interests. These benefits arise upon the filing of a class complaint and operate to ‘‘freeze'' the potential individual actions of those comprising the putative class. They are needed only for the time that it takes the trial court to assess the merits of the class certification request and to render its decision. Upon denial of class certification, the putative class members do not lose these benefits, but, rather, the function that they were adopted to serve is fulfilled, and putative class members are free to file their own lawsuits or to seek to intervene in the named plaintiff's ongoing litigation.

* * *

http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR285/285CR19.pdf

Outcome: We conclude that an order denying class certification is not a final judgment and does not meet either prong of the Curcio test for appealability of an otherwise interlocutory order.17 The Appellate Court properly dismissed the plaintiffs’ appeal for lack of a final judgment. The judgment of the Appellate Court is affirmed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None