Finally! The Appellate Court Recognizes that Finality Is Confusing
By Kenneth J. Bartschi, Partner
When an interlocutory order is final for purposes of appeal often involves a daunting inquiry. An otherwise interlocutory order is immediately appealable where either “the order or action terminates a separate and distinct proceeding . . . [or] the order or action so concludes the right of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31 (1983). Although appellate lawyers and jurists can probably recite the Curcio test in their sleep, a sea of ink and megabytes of pixels have been expended applying this test.
But vexing questions concerning finality of judgments are not limited to determining whether an appeal period as started, as the plaintiffs in Ruiz v. Victory Properties, LLC, 180 Conn. App. 818 (2018), discovered. Plaintiff Adriana Ruiz was seven years old when another child dropped a cinder block from the third floor of an apartment building, hitting her on the head. 180 Conn. App. at 821. Ruiz and her mother ultimately sued Victory Properties, LLC (the landlord) in negligence and John Kovalcik and Intepros for fraudulent transfer and to pierce the corporate veil. Id. at 821-22. Kovalcik was the managing member of Victory and the president of Intepros. Id. at 822. Acting on behalf of Victory, Kovalcik gave a $500,000 mortgage to Intepros to shield Victory’s assets. Id. Hence the fraud claim and desire to pierce the corporate veil.
Victory moved for summary judgment, claiming it owed no duty to the plaintiffs, as did Kovalcik and Intepros who argued that the claims against them were derivative of the claims against Victory. Id. at 822-33. The trial court granted both motions on separate days. Id. at 823-24. The plaintiff appealed only the summary judgment against Victory and ultimately prevailed on appeal. Id. at 824, 825-26.
On remand, the plaintiffs moved pursuant to Practice Book § 17-4 and Conn. Gen. Stat. § 52-212a to open the judgment as to Kovalcik and Intepros, arguing that it was granted only because the claims were derivative of the now-revived claims against Victory. Id. at 826. Both § 17-4 and § 52-212a, authorize the court open a judgment for good cause shown when a motion is filed within four months. (There are exceptions to the four-month rule, but they were not applicable in Ruiz.) The plaintiffs’ motion to open here, however, was four and a half years after the court granted summary judgment for Kovalcik and Intepros, which was not appealed. Ruiz, 180 Conn. App. at 824, 826. The trial court denied the motion, rejecting the plaintiffs’ claim that the automatic stay set forth in Practice Book § 61-11 that arose from the appeal as to Victory somehow caused time to freeze as to Kovalcik and Intepros, despite the lack of an appeal as to the order granting them summary judgment. Id. at 826-27.
The Appellate Court began with a discussion of “compelling interest in the finality of judgments which should not lightly be disregarded.” Id. at 828 (citations and internal quotations omitted). Section 52-212a (and § 17-4, its counterpart in the Practice Book) serve that goal by constraining the court’s authority to act to motions to open filed within four months of the date judgment was rendered. Id. at 829. But even this test is not straight forward, as the Supreme Court held in Nelson v. Dettmer, 305 Conn. 654, 674 (2012), that “finality” in this context means the date the court ruled on a motion to reargue filed during the original appeal period. Thus, a motion filed within the appeal period pursuant to Practice Book § 11-11 that would render the judgment ineffective “suspends the appeal period.” Ruiz, 180 Conn. App. at 829-30 & n.10 (quoting Nelson, 305 Conn. at 677) (internal quotations omitted). After discussing Nelson, the Appellate Court that it did not hold that finality was suspended during an appeal. Id. at 830.
In a footnote, the court acknowledged the tension between decisional law and the rules of practice. Specifically, the plain language of Practice Book § 63-1(a) and (c)(1) provide that where a party has filed a motion during the appeal period that, if granted, would render the judgment ineffective, the party may appeal during the original appeal period, which continues to run, or during a new appeal period that runs from the ruling on the post-judgment motion. Id. at 830 n.10. But if a post-judgment motion truly “suspends” finality, then there is no longer a final judgment, which is required for appellate jurisdiction. Thus, like interlocutory appeals, finality depends on the circumstances.
The plaintiffs’ primary argument on appeal was that the automatic stay pursuant to § 61-11 tolled the four-month period. The court made short work of this claim, noting decisional law provides trial courts with authority to act on motions pending on appeal as long as the court took no action to enforce the judgment or carry out the order on appeal. Id. at 832-33. More important, § 61-11 only stays executions; it does not prohibit all further trial court proceedings pending appeal. Id. at 834.
The plaintiffs’ error was not appealing the summary judgment as to Kovalcik and Intepros, which was a separate order from the order as to Victory. As the Appellate Court acknowledged, “our jurisprudence regarding the finality of judgments, preservation of appellate issues, and limitation on a party’s right to seek collateral relief from a judgment is, at times, somewhat opaque and fraught with potential pitfalls for attorneys and self-represented litigants.” No kidding. For that reason, counsel and self-represented litigants should pay attention to the appellate rules. Or make friends with an appellate lawyer.