Ciccarelli v. Ciccarelli

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CHARLOTTE CICCARELLI v. PAUL CICCARELLI
(AC 41973)
Lavine, Elgo and Moll, Js.
Syllabus
The plaintiff brought this action seeking, inter alia, the partition of certain
real property that she owned as a joint tenant with the defendant. In
count one of her complaint, the plaintiff sought a partition of the prop-
erty, and in count two she sought an accounting and damages. After
the trial court granted the plaintiff’s motion for summary judgment as
to the first count of the complaint only, the plaintiff filed a motion for
an order of partition by sale and the appointment of a committee.
Thereafter, the court entered a notice of judgment of partition by sale
and set a sale date, and the defendant appealed to this court, which
dismissed the appeal for lack of a final judgment. Subsequently, the
defendant filed another appeal to this court from the partial summary
judgment rendered by the trial court, claiming that he brought the appeal
to overturn summary judgment in order to stop the sale of the property.
Held that this court lacked subject matter jurisdiction over the defen-
dant’s appeal, the defendant having failed to appeal from a final judg-
ment; a judgment that disposes of only part of a complaint is not a final
judgment unless the partial judgment disposes of all causes of action
against a particular party or parties, and it was undisputed that the
partial summary judgment rendered by the trial court did not dispose
of all causes of action against the defendant, as the second count of
the plaintiff’s complaint remained pending and the record did not contain
a withdrawal or an unconditional abandonment of that count of the
plaintiff’s complaint.
Argued September 20—officially released November 12, 2019
Procedural History
Action for, inter alia, the partition or sale of real
property, and for other relief, brought to the Superior
Court in the judicial district of New Haven, where the
court, S. Richards, J., granted the plaintiff’s motion for
summary judgment as to count one of the complaint
and rendered partial judgment for the plaintiff, from
which the defendant appealed to this court, which dis-
missed the appeal; thereafter, the defendant appealed
to this court. Appeal dismissed.
Paul Ciccarelli, self-represented, the appellant
(defendant).
Sheila J. Hall, for the appellee (plaintiff).
Opinion
PER CURIAM. The self-represented defendant, Paul
Ciccarelli, appeals from the summary judgment ren-
dered by the trial court in favor of the plaintiff, Charlotte
Ciccarelli,1 on count one of a two count complaint. We
conclude that the defendant has not appealed from a
final judgment and, therefore, dismiss the appeal.
The relevant facts are not in dispute. At all relevant
times, the parties owned real property known as 17
Moulthrop Street in North Haven (property) as joint
tenants with rights of survivorship. In 2017, the plaintiff
commenced the present action against the defendant.
Her complaint contained two counts. In the first count,
the plaintiff sought a partition of the property pursuant
to General Statutes §§ 52-495 and 52-500 (a). In the
second count, the plaintiff sought an accounting and
damages pursuant to General Statutes § 52-404 (b).2 The
defendant thereafter filed an answer, in which he denied
the allegations of the plaintiff’s complaint. The defen-
dant also filed a special defense, alleging that the plain-
tiff had improperly withdrawn funds from a financial
account jointly held by the parties.
After the pleadings were closed, the plaintiff filed a
motion for summary judgment on the first count of the
complaint, claiming that no genuine issue of material
fact existed with respect to her right to a partition of
the property. That motion was accompanied by the
plaintiff’s sworn affidavit. Although the defendant filed
an opposition to that motion, he did not submit any
documentation in support thereof. Following a hearing
on April 23, 2018, the court granted summary judgment
in favor of the plaintiff on the first count of her com-
plaint. The official case detail contains an entry dated
April 23, 2018, which states that the court had entered
judgment ‘‘as to certain counts of the complaint for the
plaintiff—case remains pending.’’
The plaintiff then filed a motion for an order of parti-
tion by sale and the appointment of a committee. On
May 14, 2018, the court entered a notice of judgment of
partition by sale and set a sale date of October 20, 2018.
On May 29, 2018, the defendant filed an appeal to this
court challenging the propriety of the partial summary
judgment rendered by the court on April 23, 2019. In
response, the plaintiff moved to dismiss the appeal for
lack of a final judgment, which this court granted on
June 27, 2018.
On August 10, 2018, the defendant filed another
appeal from the partial summary judgment rendered by
the trial court on April 23, 2018. On his appeal form,
the defendant states that he brought this appeal ‘‘[t]o
overturn the summary judgment in order to stop the
sale of the house.’’ In response, the plaintiff maintains
that the defendant has not appealed from a final judg-
jurisdiction. We agree.
‘‘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 . . . . The jurisdiction
of the appellate courts is restricted to appeals from
judgments that are final. General Statutes §§ 51-197a
and 52-263; Practice Book § [61-1] . . . . The policy
concerns underlying the final judgment rule are to dis-
courage piecemeal appeals and to facilitate the speedy
and orderly disposition of cases at the trial court level.
. . . The appellate courts have a duty to dismiss, even
on [their] own initiative, any appeal that [they lack]
jurisdiction to hear.’’ (Internal quotation marks omit-
ted.) Mazurek v. Great American Ins. Co., 284 Conn.
16, 33, 930 A.2d 682 (2007); accord In re Santiago G.,
325 Conn. 221, 229, 157 A.3d 60 (2017) (lack of final
judgment constitutes jurisdictional defect that necessi-
tates dismissal of appeal).
Our precedent further instructs that ‘‘[a] judgment
that disposes of only a part of a complaint is not a final
judgment . . . unless the partial judgment disposes of
all causes of action against a particular party or parties;
see Practice Book § 61-3; or if the trial court makes a
written determination regarding the significance of the
issues resolved by the judgment and the chief justice
or chief judge of the court having appellate jurisdiction
concurs. See Practice Book § 61-4 (a).’’ (Internal quota-
tion marks omitted.) Tyler v. Tyler, 151 Conn. App. 98,
103, 93 A.3d 1179 (2014). It is undisputed that the partial
summary judgment that the court entered on April 23,
2018, did not dispose of all causes of action against the
defendant, as the second count seeking an accounting
pursuant to § 52-404 (b) remained pending. In addition,
the defendant has not requested a written determination
from the trial court regarding the significance of the
issues resolved by the partial summary judgment
entered against him.
As a result, the defendant could appeal from the par-
tial summary judgment ‘‘only if the remaining causes
of action or claims for relief [were] withdrawn or uncon-
ditionally abandoned before the appeal [was] taken.’’
Meribear Productions, Inc. v. Frank, 328 Conn. 709,
717, 183 A.3d 1164 (2018). The record before us does
not contain a withdrawal or an unconditional abandon-
ment of the second count of the complaint by the plain-
tiff. To paraphrase our Supreme Court, not only does
that second count remain unadjudicated, it also pre-
sents the possibility that the defendant could be found
liable to the plaintiff for additional damages. Id., 726.
In such instances, ‘‘it cannot be said that further pro-
ceedings could have no effect on him.’’ Id.; see also
State v. Ebenstein, 219 Conn. 384, 389–90, 593 A.2d
961 (1991) (dismissing appeal from partial summary
judgment for lack of final judgment and emphasizing
that parties will still be before trial court for final deter-
mination of ancillary claim).
We conclude that the defendant has not appealed
from a final judgment, as the second count of the plain-
tiff’s complaint remains pending. Accordingly, this
court lacks subject matter jurisdiction over the defen-
dant’s appeal.
The appeal is dismissed.
1
The plaintiff is the defendant’s mother.
2
General Statutes § 52-404 (b) provides: ‘‘When two or more persons hold
property as joint tenants, tenants in common or coparceners, if one of them
occupies, receives, uses or takes benefit of the property in greater proportion
than the amount of his interest in the property, any other party and his
executors or administrators may bring an action for an accounting or for
use and occupation against such person and recover such sum or value as
is in excess of his proportion.’’