Page

1. Aggrievement

2. Appealability

3. Appealability as Affected by Tort Reform

4. Appellate Counsel

5. Appellate Courts

6. Appellate Jurisdiction

7. Articulation and Rectification

8. Cross Appeal and Alternate Grounds

9. Dismissal of Appeal

10. Error

(a) Preservation of error

(i) Charge

(ii) Rulings

(iii) On appeal

(iv) Miscellaneous

(b) Harmless error

(c) Induced error

(d) Plain error

11. Frivolous Appeal

12. General Verdict Rule

13. Judicial Notice

14. Motion to Set Aside - Jury Cases

15. Motion to Set Aside - Court Cases

16. Oral Argument

17. Remand

18. Reservation

19. Scope of Review

20. Standards of Review

21. Statutory Construction

22. Waiver of Issue By Amending

The Appellate Court restated the threshold inquiry it must make upon every appeal presented to it - that of aggrievement:

AGGRIEVEMENT: the party must demonstrate a specific personal and legal interest in the subject matter of the decision and that party must establish that this personal and legal interest has been specially and injuriously affected by the decision. Mere status as a party or participant in the proceedings below does not constitute aggrievement for appellate purposes. Id.

See also, DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 374 (1991).

Foreclosure by sale. Defendants, owners of the property, sought to attack an order for a four-week extension of the sale date which they had requested.

Any person aggrieved by any order, denial or decree of a court of probate in any matter may appeal to the superior court. Section 45-288.

AGGRIEVEMENT: whether there is a possibility that some legally protected interest of the appellant's has been adversely affected. Erisoty's Appeal from Probate, 216 Conn. 514, 520 (1990). Action for paternity. Probate court ordered putative father, minor child and child's mother's husband, Erisoty, to have blood grouping tests. Erisoty appealed the order to the superior court which found no aggrievement and dismissed for lack of subject matter jurisdiction.

HELD: Plaintiff's constitutionally protected interests in human dignity and privacy were adversely affected by the probate court order to submit to a blood test.

(a) The taking of an appeal from a probate order does not in and of itself vacate or suspend the order. That order continues in full force unless and until the appellate tribunal determines otherwise. In Murphy's Appeal from Probate, 22 Conn. App. 490 (1990), the complainant appealed probate orders but failed to either request a stay of further proceedings in the probate court or to seek an injunction to prevent action in the probate matter pending the appeal.

(b) An appeal from probate is a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court's jurisdictional limitations. Gardner v. Balboni, 218 Conn. 220, 225 (1991) Although the Superior Court may not consider events transpiring after the Probate Court hearing, it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered.

The plaintiff dependent widow of a volunteer firefighter appealed to the Appellate Court from the decision of the Workers’ Compensation Review Board affirming the reduction of survivor’s benefits and her duty to reimburse the city for the overpayment. The commissioner’s finding and award provided for "a hearing, at the request of any party, to decide how the reimbursement for the overpayment shall be made." 38 Conn. App. at 756. The CRB remand specified that at future proceedings the commissioner would be limited to determining the plaintiff’s repayment schedule to the city for the overpayment she received.

The Appellate Court requested the parties to address, at oral argument, the jurisdictional question of whether the appeal was properly before them as a final judgment. The test for determining whether the commissioner’s decision was a final judgment turned on the scope of the proceedings on remand: "‘If such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.’" 38 Conn. App. at 756, quoting Szudora v. Fairfield, 214 Conn. 552, 556 (1990).

The Appellate Court found that the scope of the proceedings would be ministerial because the taking of new evidence would not be necessary. "The commissioner would not be able to modify the underlying decision that the plaintiff had been overpaid." 38 Conn. App. at 756. On remand the commissioner could merely create a repayment schedule. Accordingly, the decision of the commissioner was a final judgment.

A trial court's failure to render judgment on a count of plaintiff's complaint results in lack of a final judgment for purposes of appeal even though such count was withdrawn during the pendency of the appeal. The jury found for the defendants on

the first count in this wrongful death action. The court accepted the verdict and rendered partial judgment thereon. The plaintiff moved to set aside the verdict and for a new trial. The court denied this motion, and plaintiff appealed. When plaintiff realized that no judgment had been rendered on the second count of the complaint, he withdrew this count during the pendency of the appeal. The Appellate Court held that the withdrawal of the second count during the pendency of the appeal did not confer jurisdiction. Appeal dismissed.

Defendant moved for sanctions against the plaintiff and its attorney for bad faith pleading. The plaintiff’s attorney neither complied with nor appealed the August 31, 1990 sanctions order. The defendant then moved the trial court to find plaintiff’s attorney in contempt of court. On March 18, 1993, a trial court vacated the earlier trial court’s order after finding that no hearing had been held in support of the defendant’s motion for sanctions pursuant to Fattibene v. Kealey, 18 Conn. App. 344 (1989). Plaintiff appealed from the judgment and defendant cross appealed on the basis that the trial court’s initial order regarding sanctions was a final judgment. The Appellate Court concluded that this order was a final judgment pursuant to the test set forth in State v. Curcio, 191 Conn. 27, 31 (1983). The Appellate Court held that the applicable four month period set out in §52-212a and Practice Book §326 had run and that the parties had not filed a motion to open or set aside within that time period. Nor had either party appealed the validity of the order. Therefore the trial court was without jurisdiction to vacate the previously imposed sanctions order. Accordingly the portion of the judgment vacating the initial order was reversed.

The attorney was not a party in the action. Nonetheless he had been ordered to pay $10,000 attorney’s fees along with the defendant. After the sanctions order issued the Appellate Court noted that no further "trial court proceedings were anticipated that would eradicate the plaintiff and (the attorney’s) obligation to pay the $10,000." The Appellate Court interpreted the order as a final judgment.

The moral is that where sanctions are ordered against an attorney, the judgment is final. Since the attorney is not a party in such circumstance, it would appear that a writ of error rather than an appeal would be the appropriate vehicle for appellate review. Bergeron v. Mackler, 225 Conn. 391 (1993)(writ of error lies from improper disqualification of a lawyer for a witness). If sanctions are ordered against a party, an appeal or notice of intention to appeal authorized by §4002 must be filed. If an appeal is filed, it goes to the Appellate Court, but the lawyer’s writ of error must go to the Supreme Court. If the party files a notice of intent to appeal, the lawyer nonetheless must file a writ of error, as §4002 only applies to appellate rights of parties, not their counsel. A bizarre scenario, to say the least.

Every time counsel fees are ordered in a discovery dispute a final judgment is rendered. These orders now are routinely ignored on the basis that they do not become final until judgment enters, and can be later set aside, either upon compliance or upon settlement by agreement. The decision seems to encourage piece-meal appeals and writs of error, which will surely come from the attorneys because a final sanctions order must be reported to the attorney’s malpractice insurance carrier. If ignored it could cause cancellation of insurance or even the inability to obtain malpractice insurance.

The appeal was taken from the denial of a motion to dismiss. The court concluded that no final judgment exists and the appeal had to be dismissed.

The plaintiff brought a personal injury action against the City of Bridgeport under §13a-149 for injuries sustained when he fell on a sidewalk. The trial court granted the plaintiff’s motion for default based on the defendant’s failure to plead. Before a scheduled hearing in damages was held, the defendant filed a motion to open the default, which the trial court denied. The defendant then moved to dismiss the plaintiff’s action on the basis of an alleged lack of subject matter jurisdiction. The trial court denied the defendant’s motion to dismiss, and the defendant appealed and the plaintiff cross appealed. The plaintiff then moved to dismiss the appeal, and the court dismissed not only the appeal but the cross appeal.

The court, in a per curiam decision, stated that it is undisputed that the denial of a motion to dismiss is not ordinarily a final judgment. It noted in a footnote, 36 Conn. App. at 159 n. 1 that there is "one exception" to this rule which involves an interlocutory appeal taken from a denial of a motion to dismiss on double jeopardy grounds.

The court overlooked authority permitting an interlocutory appeal where the defense of collateral estoppel is asserted. In Convalescent Center of Bloomfield Inc. v. Department of Income Maintenance, 208 Conn. 187, 194-195 (1988) the court held:

In Wann v. Lemieux, 36 Conn. App. 138 (1994) the petitioner offered at trial HLA evidence which the family support magistrate excluded. The magistrate then determined that the petitioner had failed to establish a prima facie case and granted the defendant’s motion for nonsuit. The petitioner filed a motion to set aside the nonsuit, which was denied, and thereafter she filed an appeal to the superior court in accordance with §46b-231(n) from the decision of the family support magistrate. The superior court set aside the nonsuit.

The Appellate Court dismissed the appeal on the grounds that the superior court order setting aside the nonsuit and finding that the HLA evidence should have been admitted, and remanding the matter to the magistrate for further proceedings in the paternity and support matter, did not terminate a separate and distinct proceeding, nor did it conclude the rights of the parties so that further proceedings could not effect them.

The court, relying on Szudora v. Fairfield, 214 Conn. 522, 556 (1990) held that the proceedings contemplated on remand were confined to the arithmetical task of compiling the requisite fiscal data. Since compliance with the remand order would require the commissioner to undertake only the ministerial task of calculating benefits based on ascertainable and undisputed wage information, and would require no exercise of discretion on the part of the commissioner, the decision was appealable.

Defendant was charged with the crimes of sexual assault in the first degree and sexual assault in the third degree. He issued a subpoena for the victim’s psychological and psychiatric counseling records. In response to the subpoena, the Susan B. Anthony Center sent to the trial court a number of documents under seal. After waiver by the victim, those documents were reviewed by the trial court, which determined that they contained nothing of relevance. The documents were then resealed.

On appeal, the defendant moved to have the documents unsealed for appellate review. At that time the defendant discovered by reviewing the documents that they contained only entries of meetings attended and the victim’s intake form. The defendant claimed that the Susan B. Anthony Center failed to comply with his subpoena, and that the trial court had an obligation to inform him of this possible noncompliance. He based his claim on the fact that the records are delivered to the court under seal and seen only by the trial court, which determined whether they may be of use to the defendant. Although this procedure is universal, the Appellate Court noted the "total lack of authority" offered by the defendant to support the procedure.

In any event, the court held that "it is fatal to this claim that it was not preserved at trial, nor was the subject of a post-trial motion." 36 Conn. App. at 249.

The court held that a post-trial motion for new trial, a petition for new trial, or petition for writ of habeas corpus would have properly raised the issue on the basis of the facts discovered subsequent to the trial. It refused to review it on direct appeal.

Trial court found that the zoning commission was not in contempt because the court order did not prohibit amendment of a zoning regulation. Plaintiff filed petition for certification, which was dismissed without prejudice to plaintiff filing a late appeal. The court noted that the appeal was taken from a denial of a motion for contempt and not from a zoning decision requiring certification pursuant to §8-8.

Travelers applied for a PJR in connection with its action alleging that the defendant had failed to pay a "lease termination penalty." In response, General Electric moved for a stay pending completion of arbitration proceedings. The trial court denied the motion for stay, and the defendant appealed.

The court had previously held in Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 769-776 (1992) that a decision of a trial court granting a stay pursuant to §52-409 was not appealable. Defendant General Electric argued that a decision denying a stay meets the Curcio two-part test for appealable interlocutory orders. The court held that that defendant was arguing a distinction without a difference, and that Success Centers, Inc., supra, encompassed any order "granting or denying a stay under §52-409."

Justice Berdon dissented holding that the denial of a stay for arbitration comes within the first Curcio exception (State v. Curcio, 191 Conn. 27, 31 (1983) because the order terminated a separate and distinct proceeding.

Plaintiff bank sought to recover funds due pursuant to an agreement and filed an application for PJR seeking to attach $11 million of defendant's property. By separate order, plaintiff sought an injunction compelling the defendant to bring stock certificates into the state to secure the order of attachment. The trial court found the loan was in default and defendant owed over $9 million plus interest. The court formulated a single order granting an attachment of over $7 million and ordering the defendant to bring into the state and turn over to a sheriff sufficient securities to satisfy the attachment.

The defendant appealed only the temporary injunction, arguing that it was appealable because, under the circumstances of the case, it was a PJR.

Section 52-278a(d) states that a PJR means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of his property prior to final judgment.

The Appellate Court limited the definition of PJR to an attachment, foreign attachment, garnishment, replevin or any combination of those four remedies only. 25 Conn. App. at 32.

An order granting a PJR following a hearing is deemed a final judgment for purposes of appeal pursuant to Section 52-278d.

The granting or denying of a temporary injunction, absent a statutory exception, is generally considered interlocutory and, therefore, is not an appealable final judgment. 25 Conn. App. at 30, 35.

HELD: Appeal dismissed. The granting of a temporary in-junction is not an appealable final judgment, therefore, the Appellate Court lacks jurisdiction.

DISSENT (Foti, J.): Under the circumstances of this case, the attachment and the mandatory injunction are so mutually dependent that they form a single prejudgment remedy, i.e., an attachment - the attachment would be a nullity without something to attach. Id. at 36.

Lougee v. Grinnell, 216 Conn. 483 (1990).

Where the order or action terminates a separate and distinct judicial proceeding, it is a final judgment for purposes of appeal. Denial of motion to quash subpoena was an appealable final judgment. Texas plaintiff sought the deposition of Connecticut resident. The sole judicial proceeding in Connecticut concerned only the propriety of the deposition subpoena.

The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make a "colorable claim to intervention as a matter of right." See, Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536 (1990).(Appellant employer made a colorable claim because Section 31-292 grants an employer who has paid workers' compensation benefits to an employee the right to join as a party plaintiff in the employee's action against a third party tortfeasor.)

Solomon v. Keiser, 212 Conn. 741, 746-747 (1989).

Action for specific performance of real estate contract. Trial court reopened and set aside a stipulated judgment and authorized the release of a previously ordered escrow fund. Defendant appealed from order to release escrow fund. Appellate Court dismissed for lack of final judgment. Supreme Court reversed.

An order setting aside or opening a judgment is ordinarily not a final judgment. Exception occurs where the appeal challenges the power of the court to act to set aside or open the judgment. In this case, the defendant challenged the power of the court to reopen the judgment since the order to release the escrow fund effectively reopened the judgment more than 4 months after it was rendered.

See also, Waterman v. United Carribean, Inc. 20 Conn. App. 283 (1989), cert. granted in part, 213 Conn. 813 (1990); Hill v. Hill, 25 Conn. App. 452, cert. den. 220 Conn. 917 (1991).

Gold v. Newman, 211 Conn. 631, 635 (1989).

Action for breach of contract. Court declared mistrial upon defendants' motion because jury exposed to evidence not admitted at trial.

Section 52-263 and Practice Book Section 4000 provide for a right of appeal "from the final judgment of the court...or from the decision of the court granting a motion to set aside a verdict." From 1963 to October 1, 1986, the rule of practice also included denial of a motion for judgment notwithstanding the failure of the jury to return a verdict.

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. See, State v. Curcio, 191 Conn. 27, 31 (1983); See, Solomon v. Keiser, 212 Conn. 741, 747 (1989).

Denial of a motion for judgment notwithstanding the failure of a jury to return a verdict does not terminate a separate and distinct proceeding or so conclude the rights of parties that further proceedings cannot affect them. "If the defendants were entitled to have their motions granted, they would be aggrieved by the failure to have granted those motions at the first trial, if the second trial should result in judgment against them." This issue can be raised by the defendants in appeal from judgment of the second trial.

The fact that a second trial will entail additional expense to the parties does not measure up to the circumstances regarded as having a serious effect upon the rights of the parties to warrant an appeal. A contrary result not efficient court administration - increases number of meritless interlocutory appeals and delays the disposition of cases. 211 Conn. at 638-639.

Appellate Court dismissed sua sponte appeal of trial court's order denying the plaintiff's request for a permanent and temporary injunction to enjoin the defendant from proceeding with arbitration. Absent a statutory exception, an order granting or denying a temporary injunction is considered interlocutory and not appealable as a final judgment.

In this case, the trial court considered and denied the request for a temporary injunction. The parties entered into a stipulation. They concluded that since they had already presented all their evidence, the decision re the temporary injunction should be considered a denial of a permanent injunction as well. Although under certain circumstances, a temporary injunction may be transformed into a permanent injunction with the consent of the parties, the trial court does not have the authority to render permanent judgments on pending claims where the pleadings are not yet closed. 20 Conn. App. at 23; See also, Doublewal Corporation v. Toffolon, 195 Conn. 384 (1985).

Paranteau v. DeVita, 208 Conn. 515, 519 (1988).

The trial judge observed during a hearing on the award of counsel fees that he was rendering a final appealable judgment. The court noted that a trial judge's statement that he is rendering a final appealable judgment "does not necessarily make it so," citing Doublewal Corporation v. Toffolon, 195 Conn. 384, 393, 488 A.2d 444 (1985).

Girgenti v. Cali-Con., Inc., 15 Conn. App. 130, 134 (1988).

The defendant moved for summary judgment, which was denied. Thereafter a full trial produced a judgment against the defendant. The court held that denial of a motion for summary judgment followed by a verdict against the movant is not appealable, citing Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988).

Paranteau v. DeVita, 208 Conn. 515 (1988).

In ruling on the supplemental post judgment of attorney's fees, the court noted that the award of fees becomes final and appealable, not when there is a finding of liability for such fees, but when the amount of the fees are conclusively determined. It held that a finding as to liability only, prior to a determination

on the issue of damages, is not a final judgment from which an appeal lies. 208 Conn. 515, 524 n. 11 (1988). It also noted that an appeal from a supplemental post judgment award of attorney's fees may challenge not only the amount awarded, but the underlying liability or recoverability of such fees as well.

Paranteau v. DeVita, 208 Conn. 515 (1988).

The court reversed in part the Appellate Court's dismissal of the appeal. Judgment entered May 27, 1987 on the merits in favor of the plaintiff on all counts, including an alleged violation of CUTPA. In the memo of decision, the trial court stated that "a hearing may be scheduled by the clerk to determine plaintiff's counsel fees." The Supreme Court construed this statement "as implicitly granting attorney's fees but delaying the determination of their amount." A hearing was held on June 18, 1987 on the attorney's fees issued, and an award in the amount of $2,580 entered. On June 25, 1987 the defendant appealed to the Appellate Court from the judgment entered May 27, 1987 as well as the subsequent award of attorney's fees on June 18, 1987. The plaintiffs filed timely motion to dismiss the appeal, which the Appellate Court granted in toto without opinion. Supreme Court granted certification, and reversed on the basis that the appeal from the judgment was not timely, but the appeal from the attorney's fees award was timely. The defendant argued the trial judge in the hearing on attorney's fees on June 18, 1987 stated that the time for appeal would commence to run from that date. The court noted (208 Conn. at 519 n. 7):

Supreme Court holding appears on pages 520-522. It adopted the "bright-line" approach setting out a uniform rule simply stating that an unresolved issue of attorney's fees does not prevent judgment on the merits from being final and immediately appealable.

The court also, 205 Conn. at 524, suggested to trial judges that judgment on the merits not enter until the fee issue is resolved. The court urged trial judges to dispose of both issues at the same time in a single judgment, or to proceed expeditiously on the attorney's fees issue so that any appeal on the merits can be amended to include attorney's fees.

Section 52-225d(d) of the General Statutes provides:

In Barker Joseph v. Jackson, A.C. No. 12416 (case settled on appeal) the Appellate Court refused to dismiss an appeal filed out of time. Plaintiff obtained a verdict in the amount of $406,320.18 on October 30, 1992. Defendants filed a motion to set aside the verdict and for a remittitur on November 4, 1992. The trial court denied the motion to set aside and for remittitur on November 18, 1992 and issued notice of the decision the same date. No appeal was filed within the appeal time.

On December 15, 1992 the defendants filed a motion to amend the judgment. On January 20 they filed an appeal from the "judgment entered upon the jury verdict, after denial of defendant’s motion to set aside verdict, extended by §52-225d of the General Statutes. The Appellate Court dismissed this appeal sua sponte for lack of a final judgment.

The defendant thereafter claimed the motion for amended judgment under §52-225d, and the court granted it on April 14, 1993. The defendants filed an appeal on May 3, 1993 from the "amended judgment entered pursuant to §52-225d of the General Statutes." Plaintiff moved to dismiss the appeal as untimely and this motion was denied.

Plaintiff argued that the Appellate Court lacked jurisdiction because the trial court, in issuing the notice of its decision on November 17, 1992, denied the motion to set aside and entered judgment "as per the jury verdict" in the amount of $406,320.18. Pursuant to §4009, plaintiff argued that the defendant should have appealed by December 7, 1992.

Plaintiff also made the following arguments:

1. Section 52-225d, as amended, was enacted in 1987 as part of the tort reform legislation. It provides for the structuring of damages in excess of $200,000.00. Section 52-225d authorizes the court to provide the parties with sixty days to negotiate a structured settlement if the verdict is in excess of $200,000.00. If the parties agree on the terms an amended judgment is authorized incorporating the terms provided the court approves. If the parties fail to agree on the terms, the statute authorizes the court to enter an amended judgment to provide for the payment of damages in a lump sum.

Section 225d(d) provides that the time within which a party aggrieved by a judgment of the court "made under this section" may appeal runs from the judgment or amended judgment. The law is well-settled that "`[t]here is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment so that in construing it no part is treated as insignificant.' Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980), Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985)." Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 407, 528 A.2d 805 (1987). Therefore, in the event that there is an appealable issue concerning the entry of the judgment under §52-225d, as to the structure, or as to the payment of the judgment in lump sum, the same can be reviewed by an appeal made under this section as authorized by the statute.

2. The defendants' motion to amend did not seek to alter the substance of the judgment but merely to comply with a technical matter, the method of payment of the judgment. The appeal from the amended judgment can only reach issues concerning such matters and not those dealing with the merits of the case. See generally, 4 Appeal and Error, C.J.S. §130 (1957); 5 Appeal and Error, C.J.S. §1471 (1958). The defendants' appeal however did not raise issues regarding the payment of damages in lump sum. Instead the appeal raised issues concerning evidentiary rulings and the size of the verdict which go to the merits of the case. These issues were conclusively established by the denial of defendants' motions to set aside verdict and for remittitur.

3. Section 52-225d was not designed to abrogate the twenty day appeal time set out in §4009 of the Practice Book. If the legislature had intended such a sweeping reform of appellate procedure it could have expressly stated this intention. Moreover, it would be illogical and unfair to have final judgment enter at different times depending on the amount of the verdict. The only rational interpretation of §52-225d is that an appeal under this section may raise only those issues pertaining to the method of payment of damages. It is manifest that with respect to the merits of the case, such as liability or damage issues or errors in rulings or in the charge an appeal must be taken in conformity with §4009.

The Appellate Court did not buy into these arguments. It appears to have followed the statute literally, and ignored the fact that defendants were attempting to reach rulings on the trial by the later appeal, rather than just rulings concerning the manner of payment as set out in the supplemental judgment.

Reckless and wanton serving of alcohol and dram shop action against defendant Maloney and the Pub Cafe. The court noted, 34 Conn. App. 655, 660 n. 7 that judgment on the verdicts against Maloney were not rendered until issues concerning collateral source recovery were determined, which occurred after the appeal by the Pub Cafe had been taken. The court nevertheless concluded that the appeal by the Pub Cafe was an appealable final judgment under State v. Curcio, 191 Conn. 27 (1983).

Section 52-225a, subsections (b) and (c) provide:

The post verdict collateral source proceedings must be completed "before the court enters judgment . . . " If, before the collateral source proceedings are completed, the court decides the motion to set aside verdict, the issuance of notice on the motion to set aside does not trigger the appeal time, as the statute mandates that before the court enters judgment it "shall" receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources, etc.

Until there is a statute or appellate rule that clarifies the situation, much confusion exists. As demonstrated in Coble v. Maloney, supra, if a party is unaffected by the collateral source determination, an earlier appeal is timely. The question is whether a later appeal would also be timely. It is not difficult to hypothesize all manner of factual scenarios in which it is impossible to predict with certainty what course of action to take.

In a wide-ranging interview by Stuart Taylor, Jr. published in the October, 1995 American Lawyer, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit was asked:

Magnotti v. Meachum, 22 Conn. App. 669 (1990).

Appeal from judgment denying writ of habeas corpus. In order to succeed in a claim of ineffective assistance of counsel on an appeal from the denial of a habeas writ, the petitioner must prove: (1) counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law, and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial.

Trial counsel filed an appeal setting out five issues in the preliminary statement. He was replaced by another attorney who amended the preliminary statement to two issues and briefed only those two. At the habeas hearing, he testified that he reviewed the transcripts and assessed the likelihood of success on each of the issues and selected the issues he felt were the strongest and most likely to result in reversal.

HELD: An appellate advocate must provide effective assistance but he is not under an obligation to raise every conceivable issue. "A brief that raises every colorable issue runs the risk of burying good arguments in a verbal mound made up of strong and weak contentions." 22 Conn. App. at 682-3; See also, Sekou v. Warden, 216 Conn. 678 (1990).

Franko v. Bronson, 19 Conn. App. 686 (1989).

Habeas court denied appellate counsel's motion to withdraw. Anders v. California, 386 U.S. 738 (1967) sets out a procedure that addresses the extent of the duty of court-appointed appellate counsel to prosecute a first appeal from a criminal conviction after the attorney has conscientiously determined that there is no merit to the indigent's appeal. There is no constitutional right to counsel in habeas corpus cases, however, General Statutes Section 51-296 creates a statutory right to counsel in certain habeas actions and appeals. Therefore, the right to appeal in habeas actions should be given the same Anders protections.

The habeas court should make the Anders determination. If, upon the filing of the Anders brief and his own independent review of the transcript, record and any brief filed by the defendant, the presiding judge determines an appealable issue does exist, pursuant to Practice Book Section 955, he may either allow counsel to withdraw and appoint new counsel or order counsel of record to proceed. If he determines there is no appealable issue, then he refers the matter back to the judge who granted petition to appeal to determine whether cert was properly granted. This judge can vacate certification and dismiss the case, allow counsel to withdraw and appoint new counsel, or order counsel to proceed.

If petition for cert to appeal is denied, petitioner may bring writ of error in the Supreme Court under Section 52-273 and Practice Book Section 4143 or go federal habeas corpus. 28 U.S.C. 2254.

Appellate Court suspended Attorney Presnick for six months from practicing before it after he failed to pay $500 sanction for his failure to attend a preargument conference in a case where he was the pro se defendant.

Practice Book Section 2036 provides that failure to comply with rules and orders of the court will subject both counsel and pro se offenders to appropriate discipline.

Appellate Court may, after reasonable notice and after affording an opportunity to show cause to the contrary, take appropriate disciplinary action against an attorney who practices before it for conduct that is an affront to the court's authority or that interferes with the ability of the court to process its cases in an orderly and expeditious manner.

The article begins:

The author, Tobias Weiss, is a member of the Connecticut bar. He finds no problem with a per curiam decision that sets out an analysis of the issue and the reasons for the court’s decision. He takes issue, however, with the practice of "there is no error" or "the judgment is affirmed" decisions, a practice adopted by our Appellate Court in recent years.

Whereas the Connecticut Supreme Court "writes an opinion in every case," even in those circumstances where a per curiam opinion issues, the court nonetheless makes a brief statement of the issue and its reliance on the reasons given by a lower court, whether the Appellate Court or the trial court, in a standardized core formulation. The Connecticut Appellate Court, however, has made use of the "one word decision," a practice which has been widely criticized. 39 Trial Lawyers Guide at 27.

The author’s analysis is that the decision of cases without indicating any supporting reasons or basis, as in the one-word or one-line decisions, is not conducive to a well-functioning judiciary and does not discharge its obligations. Most important, "it is not compatible with a democratic system of government." Id. at 30.

The author uses the label "ukase" to describe such opinions. Webster defines "ukase" as "an edict of the czar" or as "any order by an absolute or arbitrary authority." He concludes that:

Id. at 36.

Chief Justice Peters, writing for the majority, holds that three factors are necessary for the application of the capable of repetition, yet evading review doctrine:

1. The challenged action, or its effect, must be of such limited duration that there is a strong likelihood that the substantial majority of cases raising a question about its vitality will become moot before appellate litigation can be concluded;

2. There must be a reasonable likelihood that the question presented in the pending case will arise in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate; and

3. The question must have some public importance.

The court found in Loisel that the second and third requirements were met - that the question is of public importance and is likely to recur. It found the appeal moot, however, because the parties failed to establish a strong likelihood that the substantial majority of cases challenging the action in question would become moot before they could be reviewed.

233 Conn. at 382-383.

Justice Katz, with Justice Berdon dissented (233 Conn. at 388 ff). Justice Katz’ dissent was characterized by the Law Tribune (24 CLT 24, p. 6)(6/12/95) as "passionate." She stated that the majority applied the doctrine too narrowly, particularly in a case that "involves a public concern of the highest order: the ability of individuals to receive the most rudimentary levels of assistance." She favored a weighing of the different factors.

Plaintiff served an attorney with a notice of deposition and subpoena duces tecum. The attorney was deposed, but asserted attorney client privilege and personal privacy rights. The plaintiff then served a notice of deposition and subpoena duces tecum on an officer of Shawmut Bank for the attorney’s trustee bank records, and gave notice to the attorney pursuant to §36-9l. The attorney filed a motion for protective order, which was treated as a motion to quash the subpoena to Shawmut Bank, and denied. The attorney appealed. Plaintiff filed a motion to dismiss questioning the finality of the judgment, but the court did not reach that issue in light of its holding that the appeal was moot because the record reflected that Shawmut Bank had complied with the subpoena and that all the records sought under the subpoena were in the possession of counsel for the plaintiff. The mootness doctrine was set out in some detail in the Appellate Court decision, and is considered useful to repeat here. (36 Conn. App. at 174-175):

The court also held that the facts of the case do not implicate the "capable of repetition, yet evading review" rule that is an exception to the mootness doctrine. The court noted that the rule is fact sensitive. Both the appellant and appellee urged the court to review the appeal under this rule but the court concluded that there was no justification to do so.

The court stated that it is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is defined as "the legal right to set judicial machinery in motion." 231 Conn. at 504.

One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.

The Appellate Court relied on the Supreme Court’s decision in Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757 (1993). Ambroise overruled Giordano Construction Co. v. Ross, 182 Conn. 577, 579 (1980). See also, Plasil v. Tableman, 223 Conn. 68 (1992).

The jurisdictional statement on the appellant’s appeal form failed to indicate properly that the appeal was taken from a final judgment. It was clear, however, that from the preliminary statement of issues the appellant awaited the entry of final judgment before appealing. The court held that the deficiency on the appeal form was a mere technical defect for which "this court generally does not dismiss an appeal. We have often stated that we will not exalt form over substance."

Paul Zanoni, with Rosalie Zanoni, appealed a probate court order refusing to remove the fiduciary for cause. The court had accepted the fiduciary’s resignation. In the probate appeal from this ruling the newly appointed fiduciary filed a motion to strike Paul Zanoni as a party plaintiff on the ground of misjoinder. The court found that Paul Zanoni had no legal interest in the appeal and that he was not aggrieved within the meaning of §45a-186, which mandates that an appellant in a probate appeal must be aggrieved.

The Appellate Court refused to reach the issue because the underlying action in the superior court was no longer pending. The relief sought in that action by Rosalie Zanoni was denied and a judgment rendered for the defendants. No appeal was taken from that judgment. Because the Appellate Court could afford no practical relief, the issue was moot and the appeal dismissed.

The plaintiff claimed that the trial court improperly found that the award of attorney's fees for the appeal was nondischargeable in bankruptcy. The court held that this claim was nonjusticiable because there was no practical relief available to the plaintiff. Justiciability requires (34 Conn. App. at 651):

(a) Appellate courts do not decide moot questions. A case is moot if it is disconnected from the granting of actual relief or it involves a determination from which no practical relief to the complainant can follow. See, Murphy's Appeal from Probate, 22 Conn. App. 490, 494-5, cert. denied, 216 Conn. 823 (1990) for boiler plate language re actual case and controversy. Where, during the pendency of an appeal, events have occurred that prevent an appeals court from granting practical relief through a disposition on the merits, mootness applies. Mootness is a jurisdictional concept. See, Caltabiano v. Phillips, 23 Conn. App. 258, 263 (1990); Gagnon v. Planning Commission, 24 Conn. App. 413, 415 (1991).

(b) Capable of repetition, yet evading review doctrine: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration and (2) there is reasonable expectation that the same complaining party would be subjected to the same action again. See, In re Noel, 23 Conn. 410, 413 (1990).

Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. When faced with a potentially moot matter, the court considers whether the matter is capable of repetition, yet evading review; the public importance of the question presented; whether an ongoing program of the state's penal or civil system is affected; and whether the plaintiff could be affected similarly in the future. See, Sobocinski v. Freedom of Information Committee, 213 Conn. 126, 134-135 (1989).

In Sguarellino v. Hightower, 13 Conn. App. 591 (1988) (DuPont, C.J.) the defendant purged himself of contempt for failure to make child support payments and the plaintiff claimed that the appeal was moot as a result. The court found jurisdiction on the basis that collateral legal disabilities were imposed as a result of the contempt because the court's contempt order might impact the defendant's future status in the action. In Shays v. Local Grievance Committee, 197 Conn. 566, 571 (1985), the supreme court "[assumed], without deciding the matter, that no such collateral consequences attend a conviction for contempt." However, the court in Sguarellino found that such collateral consequences did attach and proceeded to address the merits of the appeal.

Defendant filed a motion for articulation with the Workers’ Compensation Review Board. The board denied the motion.

The defendant’s motion for review of the board’s decision was dismissed by the Appellate Court on the basis that §4054 of the Practice Book does not provide a mechanism by which the court can review a denial or dismissal of a motion for articulation filed with the board. The board acts not as a trial court but as an Appellate Court in workers’ compensation appeals. The court reasoned that §4054, which deals with motions for review, limited their review to actions of a "trial judge." Therefore they could not review actions of the board.

Plaintiff filed a motion for articulation March 9 which was denied March 20, 1995. She filed a second motion for articulation May 17 which was denied May 25, 1995. Her third motion was filed on June 6 and denied on June 9, 1995. None of these motions were the subject of a motion for review, and all had to do with alleged ambiguities and deficiencies in the trial court’s decision which were "all apparent at the time the court’s decision was rendered." 39 Conn. App. at 614.

The court, in an unusual published decision on a motion for review, held that the failure to file motions for review from the first three motions for articulation under the circumstances precluded the granting of the relief requested in the fourth motion for review.

The court specifically noted, 39 Conn. App. at 613 n. 5, that where the trial court’s original articulation is still not adequate for appellate review, it would be appropriate to file a motion for further articulation.

The moral is that if the court refuses to articulate to preserve the issue a motion for review must be filed immediately.

The defendant was convicted of the crime of attempted possession of narcotic substance with intent to sell. He appealed, claiming that the prosecution against him should have been dismissed because of efforts by the police to induce him to purchase what they represented were narcotics. He alleged that he had been entrapped. He claimed that the police induced him to commit the crime and that he was not otherwise predisposed to being an upper level drug dealer. The defendant filed a motion to dismiss on the grounds of "outrageous governmental conduct." He alleged that the police actions were so outrageous as to be fundamentally unfair and therefore a denial of federal due process as well as state due process.

Initially the trial court denied the motion to dismiss as premature because the state had yet to rest its case. It also commented that the defendant’s appropriate remedy would be a motion to suppress. At the conclusion of the state’s case the defendant renewed his motion to dismiss, again arguing outrageous governmental conduct. The court ruled that "the court has heard a lengthy argument on this particular position before. And while it indicated it was not the proper time to make it, this certainly is. And the court again rules that the motion to dismiss is denied." 36 Conn. App. at 165.

The state argued that the record was inadequate for review. Citing the responsibility of the appellant to provide an adequate record, the Appellate Court held:

Because of the basis of the challenged ruling was ambiguous, and because the record was "devoid" of necessary factual findings and legal conclusions, the Appellate Court refused to rule. However, the Appellate Court consistently rules on the sufficiency of evidence in jury cases by viewing the evidence in the light most favorable to sustaining the verdict. Because the motion was made after the state’s case and because the defendant relied on the evidence offered to that point, why is it not possible for the Appellate Court, instead of sticking it to the lawyer by refusing to rule because of an inadequate record, to view the subordinate facts in the light most favorable to sustaining the ruling, and rule? In effect, the Appellate Court has reinstated the finding system, which was abandoned in 1978, in the name of an adequate record.

A motion for articulation has become in appellate practice a request for "draft finding." Once filed, the opposing party responds with its own version, or "counter finding." The trial court’s response is nothing less than a "finding." This is the practice that was abolished in 1974 in court cases, and entirely in 1978. We have come full circle.

Plaintiff sought to recover payment for roofing materials sold on an open account pursuant to a credit agreement with one defendant, and used by another defendant. The credit agreement had been entered into by the president of both companies. The trial court rendered judgment for the plaintiff, from which one company appealed. The claim on appeal was that the court erred in finding that this defendant ratified the credit agreement and is estopped from denying ratification. The case was tried to the court.

The Appellate Court refused to review the issue, noting that the defendant did not seek an articulation, nor did it seek to correct "any finding in the trial court’s memorandum of decision." Noting that it was the duty of the judge who tried the case to set forth the basis of that decision, if a party, as appellant, claims on appeal that the court’s memorandum of decision lacks a sufficient factual basis or is unclear or incorrect, it is that party’s burden to have it corrected or perfected, and failure to do so precludes review.

This is another example of the Appellate Court’s refusal to review, when it could have considered the evidence in the light most favorable to sustaining the trial court’s decision and decided the issue. Where there is a factual predicate in the record, viz., the transcript of evidence, and the facts are laid out to the Appellate Court in the brief, there is absolutely no reason why the Appellate Court cannot review those facts in the light most favorable to sustaining the trial court’s decision. If there are insufficient facts, the trial court’s decision ought not to be sustained, if there are sufficient facts, considering that the same are reviewed in the light most favorable to sustaining the decision, the decision is affirmed. Why expose the lawyer to malpractice or disciplinary action when there is an adequate factual predicate in the record before the court?

The approach of the Appellate Court is another example of a return to the antiquated finding system that was dropped many years ago.

The appellants sought review of the trial court’s determination confirming an arbitration award. The trial court did not set forth any facts, reasons or law to support its decision. The appellants failed to move for articulation of the decision, and in oral argument before the Appellate Court requested that it remand the case to the trial court for the purpose of having the trial court explain the facts it found and the law relied upon. The Appellate Court refused to do this, holding that it is a duty of the appellants to take the necessary steps to provide an adequate record, they could have done so by a motion for articulation pursuant to §4051 of the Practice Book, and having failed to do this, review could not be had in the absence of an adequate record.

The trial court denied the motion to open without explanation. The Appellate Court, citing a rule that the burden of securing an adequate record rests on the appellant, refused to review the issue because the appellant failed to have the trial court articulate its decision pursuant to Practice Book §4051. As a result, the court stated "we cannot ascertain why the trial court denied the motion to open. In view of the inadequate record, we decline to review this claim."

In Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 278 n. 3 (1994) the defendants claimed that one subordinate factual finding of the trial court was clearly erroneous. The defendants conceded, however, that the correction to the court’s factual finding "should not ultimately alter the outcome of the appeal." The defendants sought the correction "in order to maintain an accurate record." The court stated that in view of the concession that any such factual error would not alter the outcome of the appeal, "we decline to consider the claim."

Maguire v. Maguire, 222 Conn. 32 (1992).

Dissolution action. Defendant took an appeal and moved for an articulation regarding the valuation the trial court placed on certain stock. The court responded that the shares had a value of over $4,000,000. Plaintiff moved for a second articulation requesting, in part, the trial court's valuation of the same stock. The trial court corrected its valuation to $2,083,628 stating that the first value was simply a mistake.

Defendant filed a motion for review of the trial court's failure to strike the motion for the second articulation and to strike its contents with the Appellate Court. The Appellate Court granted the motion for review but denied relief and sua sponte permitted the defendant to file a substituted brief. Defendant made the same arguments on appeal.

The Supreme Court found that it was not bound by the prior decision of the Appellate Court but saw no reason to disturb that decision. 222 Conn. at 38.

The Practice Book has no time limits within which to file a motion for articulation, therefore, the time in which it may be filed is left to the sound discretion of the trial court, subject to review. Id.

Id. at 39 citing State v. Wilson, 199 Conn. 417, 434, 513 A.2d 620 (1986).

It was beyond the trial court's power to change the valuation placed on the stock in the second articulation if the change had been substantive, but mere clerical errors may be corrected at any time. Id. at 39. In this case, the trial court corrected a clerical error, it did not change the substance of its decision.

(a) Trial court did not decide the issue. Failure to rectify or obtain articulation. Baron v. Planning & Zoning Commission, 22 Conn. App. at 259.

(b) Failure to show efforts to obtain medical record. State v. Marra, 215 Conn. 716, 734-35 (1990) Defendant sought review under the Evans bypass claiming his constitutional right to confrontation was impaired by his inability to gain access to a witness' medical records but presented no evidence that he even attempted to obtain the records after receiving authorization for them from the witness. The court refused to review this claim because the defendant failed to fulfill his duty to provide it with an adequate record for review.

(c) Failure to file transcript or obtain articulation. Northeast Savings, F.A. v. Hopkins, 22 Conn. App. 396, 399 (1990). Defendant requested review of trial court's denial of her motion to reopen but she failed to file a transcript of the hearing and did not move for articulation. See also Oaks v. New England Dairies, Inc., 219 Conn. 1, 16 (1991).

(d) Pretrial conference. Sachs v. Sachs, 22 Conn. App. 410, 420, cert. denied, 216 Conn. 815 (1990). Reviewing court could not discern whether a pretrial conference was actually held.

(e) Sidebar or chambers conferences. State v. Hickey, 23 Conn. App. 712, 717, cert. denied, 217 Conn. 809 (1991). Defendant claimed trial court denied his motion to strike in sidebar conference. This is the equivalent of an attempt to base an appeal on a judge's indication in chambers that he would deny a certain motion. No appeal is possible in either situation.

(f) Final argument not recorded. Failure to move to rectify. Wood v. Bridgeport, 216 Conn. 604 (1990). Defendant raised the constitutionality of Public Acts No. 89-319 which permits counsel to argue amount of damages to the jury. Defendant failed to object to the argument at trial and defendant failed to request that argument be recorded (Section 51-61a) each of which constitute a waiver of the right to press such a claim of error. The claim cannot be reviewed under Evans because defendant failed to provide an adequate record. (Defendant should have moved to rectify appeal and have argument set out in rectification order.

Practice Book Section 4051.

The purpose of this motion is to clarify an ambiguity or incompleteness in the decision of the trial court.

It is appropriate, for example, where the factual or legal basis of the trial court's decision is unclear or has been omitted entirely, where the reviewing court cannot discern whether the decision was based on a factual finding or on a particular construction of a statute, where the meaning of an ambiguous phrase used by the trial court is unclear, where it is unclear whether the trial court considered the applicable statutory criteria, and where the appellant claims that the facts found were not supported by the evidence.

State v. Holloway, 22 Conn. App. 265, 274, cert. denied, 215 Conn. 819 (1990) citing State v. Wilson, 199 Conn. 417, 434-35 (1986).

"A trial court's later articulation cannot, however, be used to contradict its earlier factual findings." Wilson, supra, 199 Conn. at 436; Holloway, supra at 22 Conn. App. at 274.

Practice Book Section 4054 provides for appellate review of a motion for articulation.

In Holloway, after the court rendered judgment, and while the case was on appeal, the defendant moved for an articulation regarding the effects of certain evidence on the court's factfinding process. The trial court denied the motion. Defendant moved pursuant to Practice Book Section 4054 for review of the trial court's denial. Appellate Court granted motion for review but denied the relief requested. On appeal, the defendant claimed that the court should have granted his motion for articulation.

HELD: The ruling of the trial court on a defendant's motion for articulation pursuant to Practice Book 4051 does not ordinarily provide the basis of a claim on appeal. Otherwise, two bites of the apple, review via motion to review and also on merits of appeal.

NOTE: The court seemed to indicate that under the right circumstances, it would reconsider its ruling on a motion for articulation, therefore, this issue should be raised in the merits of the appeal.

Under normal circumstances, a reviewing court will not remand a case to correct a deficiency the appellant should have remedied. Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 178, cert. denied, 218 Conn. 904 (1991).

Koper v. Koper, 17 Conn. App. 480, 484 (1989).

The trial judge used the articulation process to change, rather than explain, his original decision. The Appellate Court reversed for this reason. But see, Blake v. Blake, 211 Conn. 485, 494-495 (1989).

Rostain v. Rostain, 213 Conn. 686, 694-695 (1990).

Defendant appealed trial court's order re property distribution. Trial court failed to articulate a basis in fact for its findings that condominium and dock were acquired with plaintiff's inheritance. Defendant failed to file a motion for articulation pursuant to Practice Book Section 4051. Supreme Court remanded case sua sponte for further articulation. The court set out the evidence and claims presented by the parties and concluded that the record was such that the issues were not amenable to appellate review.

It is the duty of the judge who tried the case to set forth the basis of his decision. An articulation is appropriate where the trial court's decision contains some ambiguity or deficiency reasonably susceptible of clarification. The court set out the information it wanted, viz., "(o)n remand, the trial court, . . . must answer two questions . . ." (emphasis added) 213 Conn. at 695.