Nancy Powell–Ferri v. Paul John Ferri, Jr. (2013)

MEMORANDUM OF DECISION

Before the court is the plaintiffs' motion (# 155), Motion for Determination of Appealability.   The court must determine whether the orders entered regarding the plaintiff's revised complaint terminated a separate and distinct proceeding within the meaning of the first prong of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) and whether the requirements of Practice Book § 61–4 have been met.

“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.] (Citations omitted;  internal quotation marks omitted.)  Abreu v. Leone, 291 Conn. 332, 338–39, 968 A.2d 385 (2009).   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, 262 Conn. 730,734, 818 A.2d 731 (2003).”  BNY Western Trust v. Roman, 295 Conn. 194, 202, 990 A.2d 853 (2010).

The plaintiff appealed from the court's orders and entry of judgment for the defendant Nancy Powell–Ferri and that appeal was dismissed by the Appellate Court.   A petition for certification to the Supreme Court is now pending.

A full appreciation of the facts and proceedings that contribute to the court's ruling hereon requires the reader to consider the memorandum of decision and other applicable rulings on the cross motions for summary judgment and the surviving counts of the defendant Nancy Powell–Ferri's counterclaim and cross claim.   They are available for consideration and need not be repeated herein.*

In this matter, the court disposed of the entirety of the plaintiff's complaint which is a declaratory judgment action.   The court therefore assumed that the matter was immediately appealable under Practice Book § 61–2.¹  However, the Appellate Court has ruled otherwise.   Therefore, the plaintiff has brought the instant motion pursuant to Practice Book § 61–4.²  This court, must therefore consider whether “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.”  Id.

The court as well ruled in favor of the defendant Nancy Powell–Ferri on her counterclaim for declaratory judgment, which is a mirror of the plaintiff's action.   In granting that claim the court has postponed to another proceeding what relief is appropriate.   The defendant Nancy Powell–Ferri also has other surviving counts that sound in other legal theories but arise out of the same core factual circumstances.   She objects to the granting of this motion at filing # 258.

The substantive law issues in this matter surround the question as to whether it is permissible under Massachusetts law for the plaintiffs to have decanted a trust under the facts of this case.   Just before the decision sought to be appealed was rendered, the Massachusetts Supreme Court rendered its first decision approving of decanting.  Morse v. Kraft, 466 Mass. 92, 992 N.E.2d 1021 (2013).   The breadth of the applicability of that ruling has not yet been tested in Massachusetts or Connecticut courts.   While the undersigned court found that the Kraft ruling did not extend to the facts of this case, it does present a novel issue that is important not only to the parties in this case but other families similarly situated.   It is a matter of significance in the worlds of matrimonial law, and estate and trust law.   The court finds that the parties will benefit from an early resolution on appeal.

Any proceedings that occur on the counterclaims will address other issues.   The court does note, however, that the remaining counterclaims may be faced with a fatal blow if the appeal were to overturn the court's decision at issue here.   The court concludes that permitting an appeal now will not result in these proceedings being delayed by stay or otherwise.   The remedy portion of the defendant Nancy Powell–Ferri's declaratory ruling can proceed while this appeal pends.   The cross claim of Nancy Powell–Ferri against her codefendant can persist while this appeal is pending;  its issues are independent of those here.

The court has considered the other arguments raised by the defendant.   In the exercise of the court's discretion it declines to consider any of them of such importance as to dissuade the court from the granting of this motion.   The issues sought to be appealed are standing of the non-beneficiary defendant, Nancy Powell–Ferri and the ruling regarding the attempted decanting briefly described above.   Earlier writings by this court fully describe the circumstances of this case.   While this appeal pends, the balance of the civil litigation between these parties may proceed.   Therefore the requirements of Practice Book § 61–4 have been satisfied.   Likewise, the court finds that the first Curcio prong is met.

The motion is granted.

MUNRO, J.

*Editor's Note:  See 57 Conn. L. Rptr. 43, 56 Conn. L. Rptr. 828, and 54 Conn. L. Rptr. 414.

FOOTNOTES

FN1. Sec. 61–2.   Appeal of Judgment on Entire Complaint, Counterclaim or Cross Complaint.   When judgment has been rendered on an entire complaint, counterclaim or cross complaint, whether by judgment on the granting of a motion to strike pursuant to Section 10–44, by dismissal pursuant to Section 10–30, by summary judgment pursuant to Section 17–44, or otherwise, such judgment shall constitute a final judgment..  FN1. Sec. 61–2.   Appeal of Judgment on Entire Complaint, Counterclaim or Cross Complaint.   When judgment has been rendered on an entire complaint, counterclaim or cross complaint, whether by judgment on the granting of a motion to strike pursuant to Section 10–44, by dismissal pursuant to Section 10–30, by summary judgment pursuant to Section 17–44, or otherwise, such judgment shall constitute a final judgment.

FN2. Sec. 61–4.   Appeal of Judgment That Disposes of At Least One Cause of Action While Not Disposing of Either (1) An Entire Complaint, Counterclaim or Cross Complaint, or (2) All The Causes of Action in a Pleading Brought by or against a Party.(a) Judgment not final unless trial court makes written determination and chief justice or chief judge concurs.This 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.   If the order sought to be appealed does not meet these exact criteria, the trial court is without authority to make the determination necessary to the orders being immediately appealed.This section does not apply to a judgment that disposes of an entire complaint, counterclaim, or cross complaint (see Section 61–2);  and it does not apply to a trial court judgment that partially disposes of a complaint, counterclaim, or cross complaint, if the order disposes of all the causes of action in that pleading brought by or against one or more parties (see Section 61–3).When 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.If the procedure outlined in this section is followed, such judgment shall be an appealable final judgment, regardless of whether judgment was rendered on the granting of a motion to strike pursuant to Section 10–44, by dismissal pursuant to Section 10–30, by summary judgment pursuant to Section 17–44, or otherwise.A party entitled to appeal under this section may appeal regardless of which party moved for the judgment to be made final..  FN2. Sec. 61–4.   Appeal of Judgment That Disposes of At Least One Cause of Action While Not Disposing of Either (1) An Entire Complaint, Counterclaim or Cross Complaint, or (2) All The Causes of Action in a Pleading Brought by or against a Party.(a) Judgment not final unless trial court makes written determination and chief justice or chief judge concurs.This 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.   If the order sought to be appealed does not meet these exact criteria, the trial court is without authority to make the determination necessary to the orders being immediately appealed.This section does not apply to a judgment that disposes of an entire complaint, counterclaim, or cross complaint (see Section 61–2);  and it does not apply to a trial court judgment that partially disposes of a complaint, counterclaim, or cross complaint, if the order disposes of all the causes of action in that pleading brought by or against one or more parties (see Section 61–3).When 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.If the procedure outlined in this section is followed, such judgment shall be an appealable final judgment, regardless of whether judgment was rendered on the granting of a motion to strike pursuant to Section 10–44, by dismissal pursuant to Section 10–30, by summary judgment pursuant to Section 17–44, or otherwise.A party entitled to appeal under this section may appeal regardless of which party moved for the judgment to be made final.

Munro, Lynda B., J.