Thornton v. Jacobs ( 2021 )

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JOHN L. THORNTON ET AL. v. BRADLEY
JACOBS ET AL.
BRADLEY JACOBS ET AL. v. JOHN L.
THORNTON ET AL.
(SC 20457)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiffs served a subpoena on the defendant L in Connecticut to depose
her in connection with an action the plaintiffs were litigating in Florida
against a company owned by L, after a Florida court ruled that it lacked
jurisdiction to subpoena L, who resided primarily in Connecticut. L filed
a motion to quash the Connecticut subpoena, which the trial court
denied, and L appealed to the Appellate Court. The plaintiffs then filed
a motion to dismiss the appeal, which L opposed, and the Appellate
Court dismissed L’s appeal as frivolous. After the Appellate Court’s
dismissal of L’s appeal but before this court granted L’s petition for
certification to appeal, the plaintiffs served L with a subpoena in Florida
while L was visiting that state and withdrew, without prejudice, the
Connecticut subpoena. On appeal from the Appellate Court’s dismissal
of L’s appeal, held that, because the plaintiffs’ withdrawal of their Con-
necticut subpoena rendered L’s appeal to this court moot, that appeal
was dismissed, and, because L was thereby prevented from challenging,
before this court, the Appellate Court’s dismissal of her appeal as frivo-
lous, the Appellate Court’s judgment was vacated; the plaintiffs, having
unilaterally withdrawn the Connecticut subpoena, prevented L, through
no fault of her own, from challenging the Appellate Court’s adverse
determination, and the plaintiffs, after having received favorable rulings
from the Appellate Court and the trial court, should not have been
able to moot L’s appeal to this court to prevent the possibility of an
unfavorable decision.
Argued February 19—officially released July 2, 2021*
Procedural History
Motion, in the first case, to enforce compliance with
subpoenas for video depositions duces tecum, brought
to the Superior Court in the judicial district of Stamford-
Norwalk, and motion, in the second case, to quash sub-
poenas and for a protective order, brought to the Supe-
rior Court in the judicial district of New Haven and
transferred to the judicial district of Stamford-Norwalk,
where the court, Hon. Kenneth B. Povodator, judge trial
referee, granted in part the motion in the first case and
denied in part the motion in the second case, and the
defendant Lamia Jacobs in the first case and plaintiff
in the second case appealed to the Appellate Court,
which dismissed the appeal; thereafter, the defendant
Lamia Jacobs in the first case and plaintiff in the second
case, on the granting of certification, appealed to this
court. Appeal dismissed; judgment vacated.
Tadhg Dooley, with whom were Jeffrey R. Babbin
and, on the brief, James I. Glasser, for the appellant
(defendant Lamia Jacobs in the first case, plaintiff in
the second case).
James J. McGuire, pro hac vice, with whom were
Daniel J. Krisch and, on the brief, Joshua M. Auxier,
for the appellees (plaintiffs in the first case, defendants
in the second case).
Opinion
PER CURIAM. This appeal stems from an underlying
action being litigated in Florida by the plaintiffs in the
present case, John L. Thornton and Margaret B. Thorn-
ton. The parties to the Florida action are the plaintiffs
in the present case, who are the defendants and counter-
claimants in the Florida action, and 100 Emerald Beach,
LC, which is the plaintiff and counterclaim defendant
in the Florida action. Lamia Jacobs, the defendant in
the present case, is the sole owner of 100 Emerald
Beach, LC, but is not named individually as a party
in the Florida case. Jacobs and her husband, Bradley
Jacobs, reside primarily in Connecticut. The Florida
trial court ruled that it lacked personal jurisdiction to
subpoena the defendant and Bradley Jacobs but granted
the plaintiffs permission to seek to subpoena them in
Connecticut. The plaintiffs served a subpoena to depose
the defendant in Connecticut, and she filed a motion
to quash in the Superior Court in Stamford, objecting
to the subpoena.1 She argued that the plaintiffs, instead
of issuing a subpoena to her, should instead subpoena
100 Emerald Beach, LC, in order to obtain the information
being sought. The trial court, Hon. Kenneth B. Povodator,
judge trial referee, denied the motion to quash, and the
defendant filed a timely appeal with the Appellate Court.
The plaintiffs moved in the Appellate Court for per-
mission to file a late motion to dismiss, arguing that
the appeal was frivolous. The defendant opposed the
motion. The Appellate Court granted the motion to file
an untimely motion to dismiss and, thereafter, without
issuing an opinion, dismissed the appeal. The defendant
filed a petition for certification to appeal to this court,
which we granted on the following issue: ‘‘Did the
Appellate Court properly dismiss, as frivolous, the
appeal of a nonparty witness from the trial court’s order
enforcing a subpoena for an out-of-state lawsuit?’’
Thornton v. Jacobs, 334 Conn. 929, 224 A.3d 538 (2020).
After we granted certification, the plaintiffs withdrew
the subpoena they had sought to enforce against the
defendant in Connecticut. In light of this withdrawal,
we now dismiss this certified appeal as moot and vacate
the judgment of the Appellate Court dismissing the
defendant’s appeal.
The following further facts and procedural back-
ground, which are based in part on the parties’ postargu-
ment filings with this court, inform our resolution of
this appeal. In December, 2019, after the Appellate
Court had dismissed the defendant’s appeal but before
we granted her petition for certification, the plaintiffs
succeeded in serving her with a subpoena while she
was visiting Florida.2 On June 17, 2020, after this court
granted certification to appeal but before the parties
filed any briefs with this court, the plaintiffs withdrew
the Connecticut subpoena as to the defendant without
prejudice.3 We conclude that the plaintiffs’ withdrawal
of their subpoena directed at the defendant renders this
certified appeal moot. See State v. Charlotte Hun-
gerford Hospital, 308 Conn. 140, 142, 60 A.3d 946 (2013)
(defendant’s appeal challenging trial court’s order to
comply with subpoena was rendered moot when plain-
tiff no longer sought to enforce subpoena after defen-
dant settled underlying claim with third party); see also
In re Grand Jury Proceedings, 574 F.2d 445, 446 (8th
Cir. 1978) (holding that challenge to merits of court
order directing party to comply with subpoena became
moot when District Court granted issuing party’s motion
to withdraw subpoena); United States v. DiScala, Docket
No. 14-cr-399 (ENV), 2018 WL 1187394, *1 n.6 (E.D.N.Y.
March 6, 2018) (‘‘The government moved to quash an
earlier subpoena . . . [that the defendant] withdrew.
As a result, the government’s motion to quash that sub-
poena is denied as moot.’’ (Citation omitted.)); Cutsforth,
Inc. v. Westinghouse Air Brake Technologies Corp.,
Docket No. 12-cv-1200 (SRN/LIB), 2017 WL 11486322,
*8 (D. Minn. March 15, 2017) (‘‘because the [c]ourt has
deemed the subpoenas at issue withdrawn pursuant
to [the] [p]laintiff’s representations to the [c]ourt, [the
nonparty’s] [m]otion [to quash] is moot’’).
The plaintiffs argue that this appeal is not moot
because (1) they might seek to reissue the Connecticut
subpoena if they cannot obtain the information they
want through the Florida subpoena, (2) they might want
to move for sanctions against the defendant for having
filed a frivolous appeal, and (3) the underlying judg-
ments may have collateral consequences in regard to
their subpoena against Bradley Jacobs, which has not
been withdrawn.
In regard to the plaintiffs’ argument that they may
be unable to obtain all necessary information through
the Florida subpoena, the plaintiffs’ potential desire to
reissue the Connecticut subpoena does not save this
appeal from being moot. It is the plaintiffs’ own unilat-
eral actions that render this appeal moot; the defendant
is not attempting to evade judicial review by her actions.
See Boisvert v. Gavis, 332 Conn. 115, 139, 210 A.3d 1(2019) (explaining that parties should not be able to
evade judicial review by their unilateral, voluntary
actions). Any need the plaintiffs might have to reissue
the Connecticut subpoena is merely speculative at this
point. See, e.g., United States v. Garde, 848 F.2d 1307,
1309–10 n.5 (D.C. Cir. 1988) (holding that appeal chal-
lenging order denying enforcement of subpoena was
rendered moot when government was voluntarily pro-
vided certain information that satisfied relief it sought
on appeal, and there were too many variables to deter-
mine whether government would seek another sub-
poena to procure related information).
Similarly, as to the plaintiffs’ fear that dismissing this
appeal will deprive them of the ability to seek sanctions
against the defendant, that consequence—if it is one—
stems from their own action in withdrawing the Con-
necticut subpoena. The plaintiffs had their reasons for
withdrawing that subpoena, which we do not question.
But that action resulted in there no longer being a live
case or controversy pending in this state regarding
enforcement of a subpoena against the defendant in
the Florida action, and we conclude that the plaintiffs’
potential desire to seek sanctions does not save this
appeal from dismissal on the ground of mootness.4
Finally, as to the deposition of Bradley Jacobs, the
plaintiffs appear to argue that there remain collateral
consequences stemming from the underlying judg-
ments, thereby saving the appeal from mootness. See,
e.g., Putman v. Kennedy, 279 Conn. 162, 169, 900 A.2d
1256 (2006) (‘‘despite developments during the pen-
dency of an appeal that would otherwise render a claim
moot, the court may retain jurisdiction when a litigant
shows that there is a reasonable possibility that prejudi-
cial collateral consequences will occur’’ (internal quota-
tion marks omitted)). But not only is Bradley Jacobs not
part of this appeal, the trial court never ruled on the
subpoena served on him. Thus, our holding does not
prevent the plaintiffs from taking further steps to seek
to depose Bradley Jacobs in Connecticut.
Having decided that the plaintiffs’ withdrawal of the
subpoena renders this appeal moot, we must determine
whether vacatur of the underlying judgment is appro-
priate. We conclude that it is. This court previously has
held that, when an appeal is dismissed as moot, the
party who is unable to obtain judicial review ‘‘should
not be barred from relitigating the factual and legal
issues decided in rendering that judgment.’’ Commis-
sioner of Motor Vehicles v. DeMilo & Co., 233 Conn.
254, 269, 659 A.2d 148 (1995). The party seeking vacatur
must move for vacatur and has the burden ‘‘to demon-
strate . . . equitable entitlement to the extraordinary
remedy of vacatur.’’ (Internal quotation marks omitted.)
Id., 273.5
‘‘Vacatur is commonly utilized . . . to prevent a
judgment, unreviewable because of mootness, from
spawning any legal consequences. . . . In determining
whether to vacate a judgment that is unreviewable
because of mootness, the principal issue is whether the
party seeking relief from [that] judgment . . . caused
the mootness by voluntary action. . . . A party who
seeks review of the merits of an adverse ruling, but is
frustrated by the vagaries of circumstance, ought not
in fairness be forced to acquiesce in the judgment. . . .
The same is true when mootness results from unilateral
action of the party who prevailed below. . . . Never-
theless, our law of vacatur, though scanty . . . recog-
nizes that [j]udicial precedents are presumptively cor-
rect and valuable to the legal community as a whole.
They are not merely the property of private litigants
and should stand unless a court concludes that the
public interest would be served by a vacatur. . . .
Thus, [i]t is the [appellant’s] burden, as the party seeking
relief from the status quo of the appellate judgment, to
demonstrate . . . equitable entitlement to the extraor-
dinary remedy of vacatur.’’ (Citations omitted; internal
quotation marks omitted.) Private Healthcare Systems,
Inc. v. Torres, 278 Conn. 291, 303, 898 A.2d 768 (2006);
see also In re Emma F., 315 Conn. 414, 430–31, 107
A.3d 947 (2015); State v. Boyle, 287 Conn. 478, 485–89,
949 A.2d 460 (2008).
In the present case, the Appellate Court’s judgment
was adverse to the defendant—that court dismissed her
appeal as frivolous. As a result of the plaintiffs having
unilaterally withdrawn the subpoena, which we have
determined rendered the defendant’s appeal moot, the
plaintiffs have prevented the defendant, through no
fault of her own, from challenging the Appellate Court’s
dismissal of her appeal, which, in turn, had challenged
the trial court’s denial of her motion to quash. The
defendant did not voluntarily forfeit her appeal, and,
under our case law, the plaintiffs, after receiving favor-
able rulings from the lower courts, should not be able to
moot the appeal to prevent the possibility of an unfavor-
able decision. Accordingly, we dismiss this appeal as moot
and vacate the Appellate Court’s judgment.
The appeal is dismissed and the judgment of the
Appellate Court is vacated.
* July 2, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The plaintiffs also served a subpoena to depose Bradley Jacobs in Con-
necticut. He filed a motion in the trial court to quash the subpoena, but the
trial court did not rule on that motion.
2
According to the parties’ postargument filings, the defendant’s deposition
took place pursuant to the Florida subpoena on March 11, 2021, days after
oral argument in this court. The parties report that there remains an unre-
solved dispute over whether her deposition should continue, including
whether she should have to answer certain questions her counsel had
instructed her not to answer on privilege grounds. The parties have filed
papers in the Florida trial court seeking a ruling in connection with that
dispute. These events have no impact on our determination to dismiss
this appeal.
3
The withdrawal pleading provides: ‘‘The plaintiffs/applicants John [L.]
Thornton and Margaret [B.] Thornton hereby give notice, on this [seven-
teenth] day of June, 2020, that they are withdrawing without prejudice, and
releasing the defendant/respondent Lamia Jacobs from complying with, the
subpoena duces tecum, dated April 18, 2019, served upon her in the state
of Connecticut on April 29, 2019, in the [above captioned] action. Said
withdrawal without prejudice and release is not intended to, and does not,
affect in any fashion any other subpoena(s) that the plaintiffs/applicants
have caused to be served in Connecticut or elsewhere upon Lamia Jacobs
or anyone else.’’
4
We note that it is not clear from our case law or rules of practice whether,
after the dismissal of an appeal for mootness, the plaintiffs may seek sanc-
tions against the defendant for actions taken while the action or appeal was
pending. See Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn.
254, 269–70, 659 A.2d 148 (1995) (for underlying judgment that had become
moot to have no collateral effect, judgment must be vacated); see also
Practice Book §§ 85-2 (5) and 85-3.
5
Although the defendant has not filed a formal motion to vacate, in
postargument orders, this court asked the parties whether the appeal was
moot and whether this court should order the underlying judgment vacated.
The defendant has clearly communicated her position and requested that
this court vacate the Appellate Court’s judgment.