Ellen Palmer, et al. v. Friendly Ice Cream Corporation

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

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.

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