Crow & Sutton Associates, Inc. v. LLC (2010)

MEMORANDUM OF DECISION

The court has considered the plaintiff's June 7, 2010 motion (# 260) for a written determination that the court's May 21, 2010 memorandum of decision (# 257) (decision) constitutes an appealable final judgment pursuant to Practice Book § 61-4.   For the reasons stated below, the motion is granted.

In the decision, the court granted summary judgment as to all but one of the counts set forth in the plaintiff Crow & Sutton Associates, Inc.'s (plaintiff or C & S) second amended complaint (# 198) (complaint) against the two remaining defendants, United States Fidelity & Guaranty Company (USF & G) and C.R. Klewin Northeast, LLC (Klewin).   In the complaint, the plaintiff alleges that it was a subcontractor on a construction project located in Redding, Connecticut, known as Meadow Ridge Retirement Community (the project).   The owner of the project was non-party Redding Life Care, LLC (RLC).

In 1999, non-party Sordoni Skanska Construction Company (Sordoni) entered into a contract with RLC to perform work on the project.   C & S subcontracted with Sordoni to provide labor, materials, and equipment for site work and landscaping at the project.   See complaint, first count, ¶ 9.   C & S further alleges that the contract between RLC and Sordoni was terminated, and in August 2000, RLC entered into an agreement with Klewin, whereby Klewin would act as construction manager on the project.   See complaint, first count, ¶ 11.   C & S also alleges that, in October 2000, C & S and RLC entered into an agreement whereby the subcontract between C & S and Sordoni was assigned to RLC. See complaint, first count, ¶ 14.   C & S agreed to continue to provide labor, materials and equipment to the project.   C & S also alleges that, in November 2000, Klewin, as principal, and USF & G, as surety, executed a labor and materials payment bond, with RLC as obligee (bond).   See complaint, first count, ¶ 12.

C & S alleges that representatives of Klewin and RLC assured C & S that RLC would pay C & S in accordance with the subcontract and any change orders, as secured by the bond.   C & S also alleges that, based on these representations and assurances, it continued to perform.   See complaint, first count, ¶ 16.   C & S contends that, despite repeated demand, RLC has only made partial payments for the labor, materials, and equipment furnished by C & S, and that RLC and Klewin have failed and refused to tender payment for amounts due and owing.   See complaint, first count, ¶¶ 18-19.   All of the counts which were the subject of the decision incorporated the above-cited allegations.   C & S also alleges that it provided Klewin and USF & G with notice of a bond claim on November 14, 2002.   See complaint, first count, ¶ 20.

The decision disposed of both counts, the second (bond claim) and seventh (good faith and fair dealing) which were alleged against USF & G. Summary judgment was also granted as to the first, third, fourth, and sixth counts, which were alleged against Klewin.   The only count remaining is the fifth count (good faith and fair dealing), against Klewin.   A bench trial in this matter is scheduled to commence on July 12, 2010.

“The jurisdiction of the appellate courts is restricted to appeals from judgments that are final ․ The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level ․” (Citations omitted;  internal quotation marks omitted.)  Mazurek v. Great American Insurance Co., 284 Conn. 16, 33, 930 A.2d 682 (2007).

The plaintiff seeks an immediate appeal pursuant to Practice Book § 61-4(a), which concerns “[j]udgment not final unless trial court makes written determination and chief justice or chief judge concurs,” and which provides that, “[t]his section applies to a trial court judgment that disposes of at least one cause of action where the judgment does not dispose of either of the following:  (1) an entire complaint, counterclaim, or cross complaint, or (2) all the causes of action in a complaint, counterclaim or cross complaint brought by or against a party.”   Further, § 61-4(a) states, “[w]hen the trial court renders a judgment to which this section applies, such judgment shall not ordinarily constitute an appealable final judgment.   Such a judgment shall be considered an appealable final judgment only if the trial court makes a written determination that the issues resolved by the judgment are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified, and the chief justice or chief judge of the court having appellate jurisdiction concurs.”  (Emphasis in original.)

The court's decision disposed of all causes of action against USF & G but did not dispose of the entire complaint.   Thus, § 61-4(a) is applicable here.

“[T]he purpose of Section 61-4 is to create a narrow exception to our final judgment rule for those rare and special cases where interlocutory review of a trial court's pretrial ruling will resolve or greatly streamline the resolution of the entire case.   In those limited circumstances, the purpose of the final judgment rule-to promote efficiency in the handling of cases by avoiding the added cost, delay and administrative burden of piecemeal litigation-is better served by granting the right to an immediate appeal than, as usual, postponing any appeal until the rights of all parties have been fully adjudicated in the trial court.   Only if the trial judge, who knows the case personally and understands the interplay among its several claims, and the chief judge of the appellate court having jurisdiction, who knows the current status of his or her appellate docket, are mutually satisfied that the possible benefits of early appellate review exceed the likely costs and burdens of such review should the motion be granted.   Other considerations include whether an appellate ruling would likely have the practical effect of ending the case in the trial court, so that the appellate court would not be faced with deciding the same case twice ․” Fortin v. Hartford Underwriters Insurance Co., Superior Court, judicial district of Middlesex, Complex Litigation Docket at Middletown, Docket No. X04 CV 03 0103483 (January 19, 2007, Beach, J.).

In its supporting memorandum, page 5, C & S states that it “will pursue the Fifth Count of its Second Amended Complaint only if C & S's appeal results in a reversal of the summary judgment decision in C & S's favor.”   In response, Klewin, the remaining defendant, filed a pleading (# 265), in which it stated that it had no objection to the motion, based on the understanding that, if the appeal is disposed of in any manner other than a reversal in C & S's favor, the fifth count will be withdrawn with prejudice.   USF & G has taken no position.

The court agrees that judicial economy would be served by permitting C & S to immediately appeal all of the court's rulings in the decision, which disposed of all counts as to USF & G and all except one as to Klewin.   All of the counts relate to the bond.   Having an initial trial on the remaining count against Klewin, the principal, and not against USF & G, the surety, may prove to have been unnecessary.   Since the plaintiff has stated that the fifth count will not be pursued in the event that the court's decision is not reversed, an immediate appeal may resolve the entire case, so that no trial may be needed.   The possibility of having two trials, with the attendant expense for the parties and expenditure of judicial resources, will be avoided thereby.

“Under these circumstances, an immediate appeal of the judgment ․ will promote judicial economy and save the parties the additional expense of a trial which may prove to have been unnecessary.”   F.B. Mattson Co., Inc. v. Tarte, Superior Court, judicial district of Waterbury, Docket No. CV 96 013291 (March 10, 1997, Vertefeuille, J.) (19 Conn. L. Rptr. 276).

This court finds that the issues resolved by its decision as to the other counts in the complaint are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified.   This is an appropriate outcome also in view of the fact that no party objects to this course of action.

CONCLUSION

For the reasons stated above, the plaintiffs' motion, pursuant to Practice Book § 61-4, for a written determination that the court's May 21, 2010 decision should be considered an appealable final judgment, is granted.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.