OVERVIEW OF AND RECENT CASES ON CONNECTICUT

APPELLATE PROCEDURE, AND AMENDMENTS TO RULES

OF APPELLATE PRACTICE

William F. Gallagher, Esq.

Gallagher, Gallagher & Calistro

1377 Boulevard, P.O. Box 1925

New Haven, Connecticut 06509

Telephone: 203-624-4165

Fax: 203-865-5598

June 22, 199

SUMMARY OF CONTENTS

Part I

Overview of Connecticut Appellate Procedure

Part II

Recent Cases on Connecticut Appellate Procedure

Part III

A Summary of Amendments to Rules of Appellate Practice

Effective September 3, 1996

Part IV

Amendments to Rules of Appellate Practice

Effective September 3, 1996

PART I

OVERVIEW OF CONNECTICUT APPELLATE PROCEDURE

TABLE OF CONTENTS

Extensive revisions to the Rules of Appellate Procedure have been adopted, effective September 3, 1996. When these revisions are referred to in the text they appear in the same manner that this note is italicized.

Page

1. Statutory Basis for Appeal 1

2. Time Limits for Filing Appeal 3

3. Where to Appeal 4

4. Event Which Triggers Appeal Time 5

5. Tolling of the Appeal Time 9

6. Stays of Execution 12

7. Extension of Time to Appeal 14

8. Summary of Connecticut Appellate Procedure 16

Part I

Overview of Connecticut Appellate Procedure

Part III

A Summary of Amendments to Rules of Appellate Practice

Effective September 3, 1996

Part II

Recent Cases on Connecticut Appellate Procedure

Part IV

Amendments to Rules of Appellate Procedure

Effective September 3, 1996

1. STATUTORY BASIS FOR APPEAL

An appeal is purely a statutory right. In re Judicial Inquiry No. 85-01, 221 Conn. 625, 633 (1992); Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479 (1988); State v. Audet, 170 Conn. 337, 342 (1976).

G. From court closure orders (Section 51-164x);

The final judgment rule is often problematic to apply. There is no end to the litigation on the subject. A recent decision on the issue is Madigan v. Madigan, 224 Conn. 749, 753 (1993), holding that temporary orders for custody and visitation, like temporary alimony and support orders, are immediately appealable. It is useful to quote the Chief Justice in Madigan at length (224 Conn. at 752-754):

There is an excellent discussion of what is appealable, and what has been construed to be final and what is not final in Horton and Cormier, Connecticut Practice Book Annotated, Rules of Appellate Procedure (1996 Edition), pp. 24-51.

2. TIME LIMITS FOR FILING APPEAL

A. From final judgments (Section 51-197a), the time limit is set out in Section 4009 of the Rules of Practice at 20 days. The rule provides:

The revisions change this part of the rule as to civil jury cases, providing that the appeal time will run from the expiration of the period for filing a Section 320 or Section 321 motion. The time for these motions is 10 days from the acceptance of verdict, so that in such cases the appeal time is 30 days from verdict. If a Section 320 or 321 motion is filed, the time runs from the issuance of notice of decision on the motion.

B. Zoning appeals. Petition for certification within 20 days (Sections 8-8, 8-9, 8-28 and 8-30).

C. Decisions of the Appellate Court to the Supreme Court - 20 days for filing petition for certification (Section 4129).

D. Decisions concerning mechanic's liens, prejudgment remedies, and discharge of lis pendens - 7 days (Sections 49-35c, 52-278l and 52-325c).

E. From summary process decisions - 5 days (Section 47a-35).

F. Temporary injunction in labor cases - 14 days (Section 31-118).

G. From any order or decision which involves a matter of substantial public interest and in which delay may work a substantial injustice - 14 days (Section 52-265a).

H. From a judgment ordering an accounting - 20 days (Section 52-405).

I. From election disputes - 15 days (Section 9-325).

J. From court closure orders - 72 hours (Section 51-165x).

K. Writs of error - 14 days (Sections 52-273 and Section 4144).

L. Certain habeas corpus appeals - 10 days to obtain certification (Section 52-470).

M. Certain petitions for new trial - 10 days to obtain certification (Section 54-95(a)).

3. WHERE TO APPEAL

All appeals go to the Appellate Court, except that the following go to the Supreme Court (Section 51-199):

A. Original jurisdiction of Supreme Court in reapportionment cases under 51-199, and constitutional amendment, Article 16, Section 2. See Fonfara v. Reapportionment Commission, 222 Conn. 166 (1992).

B. Decision declaring statute or constitutional provision unconstitutional.

C. Capital, Class A or other felony convictions involving possible (not actual) punishment over 20 years.

D. Election or primary disputes, under 9-323 and 9-325.

E. Reprimand or censure of probate judge under 45-11g.

F. Decision regarding judicial removal, 51-51j.

G. Decision of judicial review council, 51-51r.

H. Important public issue cases under 52-265a.

I. Writ of error, Section 52-272.

As a practical matter, all civil appeals go to the Appellate Court initially. Note that even if the appeal is taken directly to the Supreme Court, the court can still transfer the case to the Appellate Court. State v. Jones, 8 Conn. App. 177, 178, note 1 (1986). See Practice Book 4023.

Zoning appeals in the past were appealable of right. This changed in 1983. Zoning appeals now go to the Appellate Court on certification under 8-8, 8-28 or 8-30.

4. EVENT WHICH TRIGGERS APPEAL TIME

Appeals, as noted, are from judgments which are final, except where a statute provides differently. The questions are: when is a judgment final, and what motions, if any, toll the appeal time?

Section 4009 also provides that judgment enters in a criminal case where there has been a conviction when sentence is pronounced; in a civil jury case when the verdict is accepted in open court; and in a civil court case when the issuance of notice of the decision is made, whether from the bench, or by mail by means of a memorandum of decision, or, as sometimes occurs, a postcard. If notice is by mail, the rule provides that the notice is deemed to have issued on the date of mailing by the clerk.

The clerk of the court is obligated under Practice Book Section 398 to give notice to the attorneys of record, inter alia, of all judgments, decisions, orders, rulings, etc., and is obligated to note on the docket the date of the issuance of such notice. The rule provides in part:

Section 4009 now provides that if notice of the rendition of the judgment or decision is by mail, the judgment shall be deemed to have been rendered when mailed by the clerk.

The court is entitled to rely on the clerk's notation that notice of judgment was sent to a party and absent a finding to the contrary, the court may assume that notice was received. DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986); Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 533, 457 A.2d 656 (1983).

The duty of the clerk to notify counsel in writing is mandatory. "Although notice of the rendition or entry of judgment is not essential to a valid judgment; . . . , where notice is required by statute such notice should be given." Graham v. Zimmerman, 181 Conn. 367, 371, 435 A.2d 996 (1980).

There is very often a delay of three to four days in the "issuance of notice" and the actual receipt of the memorandum or postcard by counsel. For example, the memorandum is mailed by the clerk when filed by the judge, and the docket noted accordingly. All that counsel receives is a stamped copy of the memorandum. As often happens, the memorandum is dated when the judge's secretary types it, and for purposes of illustration we can assume that this date is October 1. The judge does not get around to filing it until October 5, and counsel gets it in the mail on October 9. The appeal time under the rule commences when the clerk mails it and notes the docket that he has issued notice, which is usually the same date as the filing stamp. The clerk does not always note on the memo the date of mailing. It is usually the same date as the filing stamp, but not always. The time is not computed from the date that the memorandum is received by counsel, nor is it computed from the date on the memorandum, which, as indicated, merely indicates when the judge's secretary typed it. If in doubt, check the court file. And by all means save the postmarked envelope from the clerk.

Section 4009 now defines "issuance of notice" as mailing by the clerk to counsel. This is consistent with Tilo Co. v. Fishman, 164 Conn. 212, 214, 319 A.2d 409 (1972).

In Tilo, the memorandum was dated July 24, 1970, and "judgment in favor of the plaintiff was rendered on August 3, 1970," apparently meaning that the memorandum was filed on that date. The parties were not notified until November 4, 1970, and the plaintiff, assuming that he had lost his right to appeal, initiated a petition for new trial, to which the defendant demurred, claiming that the plaintiff should have appealed. The demurrer was sustained, and the Supreme Court affirmed, citing Section 398 of the Practice Book, above quoted. The court observed that there was "no need to determine when in fact the notice was issued as the demurrer admitted the date of November 4, 1970" (164 Conn. at 214).

There is no question that the memorandum of decision is the judgment of the court, and the later preparation of the judgment file is not the judgment for purposes of appeal. "The judgment file is merely a clerical document ... as the pronouncement by the court ... is the judgment." Lucisano v. Lucisano, 200 Conn. 202, 206, 510 A.2d 186 (1986); see also LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 673 n. 4, 525 A.2d 140 (1987); Lento v. Sproul, 9 Conn. App. 441, 519 A.2d 1214 (1987). Judge Shapiro's observations in Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 535, n.2, 294 A.2d 573 (1972) are exactly to the point in this respect:

See also, DeTeves v. DeTeves, 202 Conn. 292, 296 n.6, 502 A.2d 608 (1987); Segretario v. Stewart-Warner Corporation, 9 Conn. App. 355, 360, 519 A.2d 76 (1986); State v. Nardini, 187 Conn. 109, 127, 445 A.2d 304 (1982) ( ". . . In criminal cases subject to sentence review, the imposition of the modified sentence following the action of the sentence review division is merely formal and ministerial).

Sometimes there is no memorandum of decision, nor even a postcard, as the decision is issued from the bench. This is not the common practice in court trials, nor in the court's ruling on a post-trial motion, but it certainly is the common practice in pendente lite and post-judgment divorce motions. In this circumstance, Section 4009 now clearly provides that notice issues when the ruling is pronounced in open court. Even where the rule requires that a memorandum be filed, if the decision is pronounced from the bench, clarification from the court is warranted as to whether a later memorandum will be filed in compliance with the rule, and if so, whether the ruling of the court is deferred until then. If not, the appeal time commences form the pronouncement in open court.

A recent Appellate Court decision has resolved the controversy over statutes that set the triggering event at the "entry of judgment." The appeal time is from issuance of notice of the event appealed from, and a statute providing that an appeal must be filed "within ten days after the entry of" the workers’ compensation commissioner’s award was held to mean within ten days of the issuance of notice of such award. Conaci v. Hartford Hospital, 36 Conn. App. 298, 300-301 (1994).

Citing fundamental due process considerations, the Appellate Court, in a well reasoned decision by Judge Heiman, held that §31-301(a), which provides for an appeal "within ten days after the entry of such award by the commissioner" to the CRB means within ten days after the issuance of notice of the entry of the award. The court stated that it has long been established that the most reasonable interpretation of a limitation provision applicable to appeals to the compensation review board is one that takes into consideration notice to the party aggrieved by the commissioner’s decision. Fundamental rights to procedural due process mandate such a construction. 36 Conn. App. at 301.

The court also noted that the Supreme Court in Kron v. Thelen, 178 Conn. 189, 197 (1979) held that an appeal period for a probate decision commences on the date that the probate court sends notice, and held in Hubbard v. Planning Commission, 151 Conn. 269, 271-272 (1964) that the appeal period for zoning decision commences on the date of publication of the notice of the commission’s decision.

The plaintiff appealed from the commissioner’s decision to the CRB sixteen days after the entry of the commissioner’s decision, and eight days after she had received notice. The Appellate Court remanded for a determination of the date on which notice of the commissioner’s decision was sent to the parties, as the issuance of notice date is essential to assess whether the plaintiff’s appeal was timely. 36 Conn. App. at 304.

The Tort Reform Legislation of 1986 and 1987 have impacted the event from which the appeal is taken. The reason for this is because the court is required to conduct a collateral source hearing before entry of judgment, so that the issuance of notice of the decision on the motion to set aside is no longer, in those cases where the collateral source issue has not been resolved, the "issuance of notice" of the judgment. This is discussed infra. The revisions effective September 3, 1996 have clarified and revised Section 4009. These changes are discussed infra in Part III.

5. TOLLING OF THE APPEAL TIME

Section 4009 of the Practice Book provides in part:

Usually in a criminal case post-trial motions have been resolved prior to sentencing. There is rarely an occasion to file a motion after sentencing so that the time within which to appeal in a criminal case is seldom tolled by the filing of a post trial motion, except a motion for waiver of fees, costs and expenses.

The contrary is usually the rule in a civil case, as entry of "judgment" from which the appeal runs is not deferred to any later date, but either enters when the verdict is accepted in open court, or a ruling is announced in open court, or issuance of notice of the memorandum of decision at a later time is made. On the civil side, as indicated by the rule, the timely filing of a motion which, if granted, would render the judgment ineffective will toll the appeal time until notice is issued of the decision on the motion.

A motion to reargue following a trial court's rendition of judgment tolls the appeal time. Contrary to the established practice of many trial judges, the Appellate Court expressly recognized a motion to reargue as within the inherent power of the Superior Court. It also held that the Section 4009 test for tolling of the appeal time is met by a motion for reargument. K.A. Thompson Electric Co. v. Wesco, Inc., 24 Conn. App. 758, 760 (1991).

The Appellate Court held that where a party files a motion to reargue following the trial court's rendition of judgment, the filing of the motion to reargue tolls the running of the period in which to file an appeal from that judgment. In an unusual memorandum of decision on a motion to dismiss, the court pointed out, 24 Conn. App. at 759, that no statute or trial court rule of practice (at the time the decision was published) specifically authorized the filing of a motion to reargue following the rendering of a judgment. It also pointed out that it has long been recognized to be within the inherent power of the trial court to determine whether such a motion should be considered, and if so, to act on the motion, citing Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 709, n. 1 (1956).

The Appellate Court reasoned that if the trial court has the inherent power to decide motions to reargue, Practice Book Section 4009 provides for tolling, as it expressly provides that if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, the time for filing the appeal is delayed until the issuance of notice of the decision on that motion.

The court also observed that it is the substance of the motion, rather than the title, that controls. Since it is obvious that the granting of a motion to reargue might render the judgment or decision ineffective, it was held to satisfy the test of Section 4009.

This was the first appellate decision which expressly recognized a motion for reargument and which held that it tolled the appeal time. There has been divided authority on the point, with many trial judges even refusing to consider motions for reargument because it was not authorized by statute or rule of court. Effective October 1, 1994 Practice Book Sections 204A and 204B expressly provide for motions to reargue before the Superior Court. The rules make a distinction between those motions which have the effect of tolling the appeal time, and those that do not.

Notwithstanding the language in K.A. Thompson Electric that it is the substance of the motion, rather than the title, that controls, the Appellate Court still has difficulty with the concept of tolling. In Jaser v. Jaser, 37 Conn. App. 194 (1995) the court held that a motion for "reargument, reconsideration, and to set aside judgment" filed within 20 days of the appeal time in a divorce case was in fact a post-judgment motion to modify, and reversed because no showing of substantial change in circumstance was made. The decision is patently wrong. It decided that the motion to reargue was a motion to modify because of the language the trial court used in its memorandum of decision granting relief. The trial court changed some of its orders in response to the motion to reargue. It heard no evidence, but did hear reargument of what had transpired on the trial. For example, the trial court disposed of what it thought was a family asset - a condominium in Quebec. It was pointed out in reargument that the parties had agreed that this asset had been disposed of prior to trial. In addition, an argument was made that the court had misapplied the Child Support Guidelines, which the trial court agreed and reduced child support in accordance with the guideline, and in accordance with the claim made on the trial for child support by the wife. The only real change in the decision came in deferring a $100,000 lump sum alimony award. Instead of payment commencing at the rate of $20,000 per year on the date of the decree, the trial court deferred the commencement of payment of this sum for five years post-decree, based on the husband’s rearguing the financial burden imposed on him by the orders in the decree. The Appellate Court held that this was an impermissible post-judgment modification of a lump sum alimony award. The decision is likely to turn the post-judgment motion practice in divorce cases on its head.

A motion for articulation does not toll the appeal time. In Matka Corp. v. Automated Material Handling, 34 Conn. App. 723 (1994), judgment was rendered March 28, 1994. The defendant filed a motion for articulation requesting that the court articulate the basis for its decision. This motion was filed on April 13, 1994, and the appeal filed April 22, 1994 from the judgment, and from the denial of the motion for articulation.

The court noted that it is inappropriate appellate procedure for defendant to seek review of the denial of a motion for articulation by way of an appeal. The correct procedure is by way of motion for review pursuant to §4054 after the appeal is pending. 34 Conn. App. at 724 n. 1.

The court's analysis was that 4009 expressly provides that if within the appeal period any motion is filed which if granted "would render the judgment or decision ineffective" the period for filing the appeal shall commence from the issuance of notice of the decision on the motion. The motion for articulation seeking to clarify an ambiguity or some incompleteness in the decision of the trial court does not seek to render the judgment or decision ineffective. 34 Conn. App. at 725.

The Tort Reform legislation has the same effect on tolling as it does on the event from which the appeal time runs. The reason for this is because the statutes involved directly refer to the requirement of the court to hold the collateral source hearing prior to the entry of judgment, or to enter a supplemental judgment in certain circumstances. This is discussed infra.

Section 4009 as rewritten preserves tolling and clarifies the rule. These changes are discussed infra, Part III.

6. STAYS OF EXECUTION

Connecticut practice, unlike federal practice and the practice in a great number of states, provides for automatic stays of execution. Section 4046 provides:

The new rule adds a paragraph which deals with stays pending the filing of a motion to reargue the decision on appeal. If there is no stay of proceedings to enforce the judgment while the appeal was pending, this paragraph provides that there is no stay by reason of the filing of the motion to reargue unless the decision results in any party being in a position different from that which the party was in while the appeal was pending. Prior to this proposed change, all appeals were stayed pending the filing of and decision on a motion to reargue.

Section 4047 of the Practice Book applies to the procedure to be used where the stay of execution is not automatic. An application for stay must be filed with the judge who tried the case unless that judge is unavailable, in which case the application may be made to any judge of the superior court. The application can be filed before judgment, and may be ruled on at the time judgment is rendered, unless the court concludes that a further hearing is necessary.

Section 4048 provides for stays of execution in criminal cases. The rule provides:

Injunctions are not automatically stayed. In a recent case , Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641 (1994) the court held that mandatory and prohibitory injunctions are not automatically stayed pending appeal. A party seeking a stay of an injunction must seek the stay from the trial court. The court explained the difference between permanent mandatory injunction (court order commanding a party to perform an act) and permanent prohibitory injunction (court order prohibiting party from performing an act), 230 Conn. at 652, and held that in both cases a stay is not automatic pending appeal. 230 Conn. at 655. Rather, it is necessary for a party to request a stay of the injunction pending appeal from the trial court. See, §§52-476 and 52-477 of the General Statutes, which provide for injunctions on appeal. A claim was made that the statutes, which do not provide for an automatic stay, were in conflict with the rule and presented a constitutional separation of powers issue, relying on 2 Stephenson, Connecticut Civil Procedure (2d Ed. 1971), §269, p. 1113. The court held that there was no conflict, as Stephenson’s analysis was written before the rule was changed to provide "except where otherwise provided by statute or other law" to the provision governing stays.

7. EXTENSIONS OF TIME TO APPEAL

Subsection (a) of Section 4040 provides for an extension of time to appeal as follows:

The revised rule has added a paragraph at the beginning of the rule which provides that the trial judge has no authority to extend the appeal time if the appeal time is set by statute and is a time limit that the legislature intended as a limit on the subject matter jurisdiction of the court to which the appeal is taken. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757 (1993).

Section 4005 provides that filing and form of cross appeals and extensions of time for filing cross appeals are the same as though the cross appeal were an original appeal, except that no entry or record fee need be paid.

Section 4132 provides that motions for extension of time for filing a petition for certification or a statement in opposition shall be governed by Section 4040. Subsection (c)(2) of Section 4040 sets a standard of "extraordinary cause" for the granting of a motion to extend time to file a petition for certification.

An assertion that counsel has been so overburdened by other assignments that he could not reasonably be expected to file a brief within the time allowed cannot be deemed as a matter of law to constitute "extraordinary cause" required by Practice Book Section 4040(c)(2) for an extension of time. State v. Weber, 221 Conn. 84 (1992)

The defendant was convicted of assault and on August 20, 1990, sentenced to five years. The transcript was completed January 8, 1991. The Appellate court granted the defendant three extensions of time within which to file his brief. When granting the third extension, the court added the proviso that the appeal will be dismissed unless the appellant's brief is filed by June 2, 1991. The extensions of time were predicated on defense counsel being a public defender with a heavy appellate and trial caseload. On May 30, defense counsel filed a motion to rescind or amend the final extension seeking an additional thirty days. In his motion he detailed his assignments including a protracted murder trial. This motion was denied and defendant filed a motion for review and a petition for certification which were denied. On October 15, 1991, he filed his brief in the Appellate Court with a motion for permission to file a late brief. The brief and motion were returned by the clerk because the case had been dismissed. On October 16, he filed the brief with a motion to rescind the dismissal order and to reopen. The State supported defendant's motions. The Appellate Court denied these motions and the Supreme Court denied certification.

The Supreme Court noted that defendant may pursue a habeas corpus petition based upon ineffective assistance of counsel.

An assertion that counsel has been so overburdened by his other assignments that he could not reasonably be expected to file a brief within the time allowed cannot be deemed as a matter of law to constitute "extraordinary cause" required by Practice Book Section 4040(c)(2) for an extension of time. If agreement between the defendant and the state were to mandate an extension, the Appellate Court would have little control over its docket. Dismissal is a sanction authorized by Practice Book Section 4055 for failure to file a brief within the time allowed, there is no basis for reviewing this exercise of discretion by the Appellate Court regulating the progress of appeals in that court. 221 Conn. at 84.

DISSENT (Berdon): The Appellate Court abused its discretion. The factual basis is documented in the State's response to defendant's petition for cert:

Id. at 91.

8. SUMMARY OF CONNECTICUT APPELLATE PROCEDURE

Since 1978 appellate practice has been centralized, and everything except the appeal is now filed with the appellate clerk in Hartford. We no longer struggle with requests for finding, draft findings, findings, and seek extensions of time for various deadlines from the trial judge. Everything goes to the appellate clerk.

The appeal is filed with the clerk of the trial court, who under Section 4012 is required in non-criminal matters to deliver a docket sheet (DS1) to appellant's counsel, who then files a stamped copy of the appeal with the docket sheet and the 4013 documents, discussed below, with the appellate clerk, whose address is:

Chief Clerk of Supreme/Appellate Court

Drawer Z, Station A

Hartford, CT 06106

There is a form for the appeal, which is available at the clerk's office. The fees are paid to the clerk of the trial court at the time of filing the appeal as follows:

The only other fees required is a $75.00 filing fee on the filing of a petition for certification, payable to the clerk of the trial court as provided in Section 4129; a $60.00 fee for a motion for reargument (P.A. 95-176, Sec. 5(b)) payable to the trial court clerk; and $250.00 for writs of error (P.A. 95-176, Sec. 4)) also payable to the trial court clerk.

Section 4071 (4064B), as amended October 1, 1992, provides for the time for filing and page limitations of briefs in the Appellate and Supreme Court. They are summarized below:

Pre-appeal motions should be filed with the clerk of the trial court even though they directly affect the appeal. For example, a motion to extend time within which to file the appeal under 4040, or a motion for waiver of fees, costs and expenses in prosecuting the appeal under 4017 or 4018 should be filed with the clerk of the trial court.

Under Section 4084 the trial court clerk makes two certified copies of the file and sends them to the appellate clerk within ten days of the filing of the appeal. The appellate clerk gets everything thereafter, so that there is one central control of all aspects of all appeals.

Section 4014 provides that except for the "transcript of evidence or where otherwise indicated, an original and 15 copies of all papers shall be filed with the appellate clerk." There are lots of exceptions, as follows:

Section 4014 provides that all appellate papers must be certified to other counsel, except the transcript, in which case the clerk gives notice of its filing (Section 4078). The certification must have the names, addresses and telephone numbers of all counsel served. The new rule adds fax numbers. Under the revised Section 4019 a certification requirement is provided on the filing of the transcript. Counsel must now file with it a list itemizing what has been filed, and certify this pleading to all counsel.

Section 4013 provides for the filing with the appellate clerk of the following:

5. A docketing statement (DS1).

Section 4013 permits an appellee to raise issues by filing a statement of issues stating alternate grounds upon which the judgment made be affirmed; present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial; assert a claim that a new trial rather than directed judgment should be ordered if the appellant's appeal is successful. The appellee's preliminary statement of issues must be filed 14 days from the filing of the appellant's preliminary statement of issues. (Revised is 20 days).

Either party may of right file amendments to the statement of issues or the designation of pleadings to the time the brief is filed. Amendments to the docketing statement may be filed at any time, and amendments to the transcript statement may be made only with permission of the court. Amendments to the preargument conference statement, if any, should be presented at the preargument conference.

CHANGES TO THE RULES OF APPELLATE PROCEDURE

EFFECTIVE SEPTEMBER 3, 1996

1. Right of appeal: Section 4000 now reads:

The rule previously had mirrored the language of §52-263 of the General Statutes, which provided that a party:

Although the commentary to the new rule states that the rule has been "clarified" to refer only to "final judgment," and that the new rule is not meant to restrict appeals from non-final orders where allowed by statute or otherwise, the change will no doubt engender substantial confusion. At a time when the superior court rules are being amended to reflect provisions in statutes, the appellate rules are being "clarified" to delete reference to statutory provisions. The practitioner will not be able to determine what is appealable by looking at the rule. It will be necessary to review the general statutes in order to ascertain, for example, that in Connecticut, unlike federal practice, a decision setting aside a verdict is appealable. In federal practice the grant of a new trial for exactly the same reason that a verdict might be set aside in state practice is not appealable.

2. Appeals from judgments disposing of part of issues, or part of the parties, but not terminating the litigation: This vexing area of appellate practice has now been clarified in §§4002A, 4002B, 4002C and 4002D.

3. Responsibility of appellant to provide adequate record. Section 4007 now provides:

The comment to this rule clarifies that it is not the responsibility of the appellant to provide an adequate record for issues raised by the appellee.

4. Appeal period, the event which triggers it, and extensions. Section 4009 has been completely revised. It is now broken up into four subsections, dealing with the appeal period, the effect of motions filed prior to taking appeal, the effect of motions filed after appeal but before the expiration of the appeal period, and adds the requirement that motions be filed simultaneously.

5. Documents that must be filed with the appeal (§4013). Come September 3, 1996 it will be necessary in civil cases to file the following documents with the appeal:

The rule has not been changed with respect to the amendment of 4013 documents. The preliminary statement of issues and designation can be amended of right until the brief is filed. The docketing statement can be amended at any time. Amendment to the transcript documents may not be made without permission of the court. If permission is granted the opposing party shall have the right to move for permission to file a supplemental brief and for an extension of time. Amendments to the preargument conference statement are not to be presented in writing, but may be presented orally at the preargument conference, if one is held.

The rule continues to provide in subsection (c) that failure to comply "shall be deemed" as sufficient reason to schedule a case for sanctions or for dismissal.

6. Fees and security. Section 4015 has been amended to delete the requirement for security for costs. The rule now merely covers fees, and expressly provides that security for costs is not required to take an appeal, but security may at any time, on motion and notice to the appellant, be ordered. If security is ordered, it shall be filed with the trial court.

7. Transfer of cases. Section 4023 now provides that when the Supreme Court transfers a case from the Appellate Court to the Supreme Court, or transfers a case from the Supreme Court to the Appellate Court, the clerk is required to notify all parties and the trial court clerk that the appeal has been transferred. There shall be no fee on the transfer. The appellate clerk may require the parties to take such additional steps as may be necessary to make the appeal conform to the rules of the court to which it has been transferred. This refers to the newly created difference in the number of copies of the record and briefs between the Appellate and Supreme Courts.

Section 4024 now requires a party to move for transfer from the Appellate Court to the Supreme Court. The motion, addressed to the Supreme Court, must specify the reasons why the party believes that the transfer should be made. It is no longer permissible to send a letter to the clerk requesting transfer. The filing of a motion for transfer with the Supreme Court does not stay proceedings in the Appellate Court.

8. Extensions of time. Section 4040 now has a provision that the time to appeal may be extended by the trial judge up to 20 days, except that the extension "shall be of no effect if the time within which the appeal must be taken is set by statute and is a time limit that the legislature intended as a limit on the subject matter jurisdiction of the court to which the appeal is taken." The quoted language is new, and is based on Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757 (1993), which held that compliance with a statutory appeal period may effect the court’s jurisdiction over an appeal, and is an issue that must be determined on a statute-by-statute basis.

Subsection (c)(1) has been amended to provide expressly that only an original need be filed, and that certification must comply with §4014 and must also indicate that a copy has been sent to each of the movant’s clients.

9. Automatic stay of execution. Section 4046 has been amended to provide that any stay of proceedings in effect during the pendency of the appeal shall continue until the time for filing a motion for reargument has expired, and if a motion is filed, until is disposition, and if granted until the appeal is finally determined. The rule also provides that if no stay was in effect during the pendency of the appeal and the appellate decision would change the position of any party from its position during the pendency of the appeal, all proceedings to force or carry out the appellate decision shall be stayed until the motion for reargument time has expired, or, if filed, until its disposition.

Section 4048 now provides for a stay of execution where the death penalty is imposed. In this circumstance, pretty much any proceeding seeking a new trial or a reversal will effect an automatic stay.

Section 4049 continues to provide that the sole remedy of any party desiring the court to review an order concerning a stay of execution is by motion for review under §4053. In the past an order terminating the stay of execution was stayed for only five days in order to allow time to file a motion for review. This has been now changed to 10 days.

10. Articulation and rectification. An original and three copies of the motion for articulation or rectification must be filed with the appellate clerk. Statements in opposition are also filed with an original and three copies. If any party requests a hearing, and it is "deemed necessary" by the trial court, that court will hold a hearing. The trial judge is now required to file the decision on the motion with the appellate clerk. The rule now provides that the sole remedy of any party desiring review of the trial court decision on such a motion shall be by motion for review under §4054.

The most significant change is that time limitations have now been imposed. A motion for rectification or articulation "shall be filed within 35 days after the delivery of the last portion of the transcripts or, if none, after the filing of the appeal." If no memorandum of decision was filed before the filing of the appeal, the 35 days will run from the filing of the memorandum of decision. The 35 day deadline can be extended. The rule expressly provides that no motion for rectification or articulation shall be filed after the filing of the appellant’s brief, except for good cause.

A motion for further articulation may be filed by any party within 20 days after the issuance of notice of the filing of an articulation by the trial court.

The comment to the rule points out that "good cause" for the filing of a motion for articulation after the appellant’s brief has been filed would include surprise to the appellee caused by the raising of an issue in the appellant’s brief that was not included in the preliminary statement of issues.

11. Motion for review. Changes in §4053 now make it clear that the existence of an appeal is not a prerequisite to the filing of a motion for review, and that a motion for review can be filed with regard to rulings relating to an appeal that is contemplated but not yet filed. The period for filing a motion for review is 10 days from the issuance of notice of the order sought to be reviewed.

12. Forcing the trial court to write a decision. Section 4059 has been revised "for clarity." It now provides that in decisions which constitute a final judgment for purposes of appeal the court is required to either orally or in writing state its decision on the issues. If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision, the appellant can file with the appellate clerk a notice that the decision has not been filed in compliance with the rule. The notice must specify the trial judge, the date of the ruling for which no memorandum of decision was filed, and the appellate clerk will "promptly" notify the trial judge.

13. Briefs. The provisions concerning briefs are now contained in §4064 to §4064J. They previously had been contained in §§4065 to 4078. Important changes are:

14. Preargument conference. Section 4103 now sets out the matters to be considered at a preargument conference. They are:

(a) Possibility of settlement;

(b) Simplification of issues;

(c) Amendments to the preliminary statement of issues;

(d) Transfer to the supreme court;

(e) Timetable for the filing of briefs;

(f) En banc review; and

15. Oral argument. Section 4108 provides that the time "occupied in the argument of any case shall not exceed one half hour on each side, without special leave of the court, granted before argument begins." The Appellate Court beginning in April 1996 has restricted argument to twenty minutes for each side. The Appellate Court assignment list beginning in April 1996, citing Practice Book §4108, states:

It is always a mistake to read an argument from a prepared text. Section 4109(a) states that "oral argument should clarify and focus arguments in the written briefs. The court discourages oral argument read from a prepared text and lengthy quotations from legal precedents, the transcript, or the record." The same rule also now provides that "counsel should assume that the court has read the briefs in advance of oral argument." It also now states that rebuttal argument must be confined to points presented by the argument of opposing counsel.

16. Consideration en banc and reconsideration when the court is evenly divided. Section 4111 provides that when the court is evenly divided as to the result, it shall "reconsider the case, with or without oral argument, with an odd number of justices or judges."

Section 4112, now captioned "Consideration en Banc" provides that before a case is assigned for oral argument the chief justice or chief judge may order on motion of a party or suo motu that the case be heard en banc. After argument but before decision the entire court may order that the case be considered en banc. If this occurs, either reargument en banc shall be ordered, or the justices or judges who did not hear oral argument shall listen to the tapes of oral argument before participating in the decision.

17. Costs. Section 4118 now provides that a bill of costs must be filed with the Appellate clerk no later than 30 days after the notice of the appellate decision or the denial of a motion for reargument, or the denial of a petition for certification, whichever is latest.

18. Motions for reargument or reconsideration and motions for en banc reargument (§4121). The rule has been modified slightly to require that the motion filed with the appellate clerk be accompanied by a receipt showing that the fee for the motion was paid or waived. The ten day requirement has not been changed. The time runs from the date of official release of the decision. The fee may be paid to any trial court clerk in the state.

It is no longer necessary to file a separate motion for reargument en banc. The rule now specifically states that as part of the motion for reargument or reconsideration, a party may also request reargument en banc by captioning the motion "for reargument or reargument en banc" and requesting such relief in the alternative.

The fee for the motion for reargument is new, created in Public Act 95-176, §5(b), and is $60.00.

19. Petition for certification. There has been no change except that if a waiver of fees, costs and expenses has been granted no fee need be paid the trial court clerk. In addition, no fee is charged in workers’ compensation cases. Subsection (b) of the rule restores the cross petition for certification practice which existed before 1986. The rule now provides for a cross petition within 10 days of the filing of the original petition. If the petition is granted §4138 now provides that security is unnecessary. All the appellant need do upon the granting of a petition is certify that the fees have been paid and file a docketing statement.

20. Writs of error. The procedure for writs of error has been clarified and amplified in §4144. Public Act 95-176, §4 requires a filing fee in the amount of $250.00. Upon payment of the filing fee, the writ, if in proper form and if presented for signature within two weeks after the rendition of the judgment or decree complained of, "shall be allowed and signed by a judge or clerk of the court in which the judgment or decree was rendered."

The manner of service and return of the writ is set out in subsection (b).

21. Reservations (§4147). The rule has been rewritten to provide guidance to the practitioner in the preparation and filing of reservations. The rule now requires that before any issue is reserved, counsel must file a stipulation which states the question upon which advice is desired, that the determination of this question by the appellate court having jurisdiction would be in the interest of simplicity, directness and economy in judicial action, that the answers to the questions will determine or are reasonably certain to enter into the final determination of the case. The stipulation must also designate the pleadings which are necessary for the presentation of the questions to be reserved, and shall state the facts which are essential for the determination of the issue.

RECENT CASES ON APPELLATE PRACTICE AND PROCEDURE

TABLE OF CONTENTS

Page

1. Aggrievement 1

2. Appealability 3

3. Appealability as Affected by Tort Reform 15

4. Appellate Counsel 19

5. Appellate Courts 22

6. Appellate Jurisdiction 24

7. Articulation and Rectification 31

8. Cross Appeal and Alternate Grounds 43

9. Dismissal of Appeal 45

10. Error 47

(a) Preservation of error 47

(i) Charge 47

(ii) Rulings 61

(iii) On appeal 63

(iv) Miscellaneous 68

(b) Harmless error 70

(c) Induced error 70

(d) Plain error 71

11. Frivolous Appeal 77

12. General Verdict Rule 78

13. Judicial Notice 86

14. Motion to Set Aside - Jury Cases 87

15. Motion to Set Aside - Court Cases 92

16. Oral Argument 94

17. Remand 96

18. Reservation 98

19. Sanctions 100

20. Scope of Review 101

21. Standards of Review 103

22. Statutory Construction 113

23. Video Appeals 114

24. Waiver of Issue By Amending 115

1. AGGRIEVEMENT

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.

2. APPEALABILITY

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.

3. APPEALABILITY AS AFFECTED BY TORT REFORM

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.

4. APPELLATE COUNSEL

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.

6. APPELLATE JURISDICTION

Plaintiff, who sustained injuries as a result of a motor vehicle collision, attempted to commence an action against various defendants including the unknown driver who fled the scene on foot leaving behind the rental car which he was operating. Plaintiff identified the unknown driver in the writ as "John Doe" and attempted to effectuate service upon him by delivering a copy of the writ, summons, and complaint to the commissioner of motor vehicles pursuant to Connecticut General Statute §52-63 (providing for service upon a motor vehicle operator or owner not found at his recorded address and whose whereabouts are unknown at the time of service) and by leaving a copy at the last known address of the person to whom the rental car was leased.

A Motion to Dismiss was filed on behalf of John Doe on the basis of lack of personal jurisdiction. The grounds being that (1) the rules of practice do not permit a plaintiff to proceed against an unknown defendant, and (2) service of process was not properly effectuated against Doe. The trial court granted the Motion to Dismiss and plaintiff appealed.

On appeal, plaintiff argued for the court to adopt a rule permitting a party to institute and maintain an action against an unidentified person under a fictitious name, for a "reasonable time period" within which to attempt to learn the person’s identity. Plaintiff also argued that service was properly effectuated. The Appellate Court, however, never reached these issues as they become moot during the pendency of the appeal thereby divesting the court of its jurisdiction.

During oral argument, plaintiff conceded that "reasonable time period" within which to discover Doe’s true identity had already passed. He further conceded that he had recently settled with his uninsured motorist carrier and could therefore not recover from Doe even if his identity were later discovered.

Although the issues were no longer ripe in the instant case, plaintiff attempted to have the court address them under the "capable of repetition, yet evading review" exception to the mootness doctrine arguing that they were likely to recur in similar cases where the alleged tortfeasor is unknown and unidentified. The court rejected plaintiff’s argument holding that plaintiff met only two of three prongs necessary to satisfy the "capable of repetition, yet evading review" exception. While the court found that there was a reasonable likelihood that the issues would rise again in the future and would effect a reasonably identifiable group for whom the plaintiff could be said to be a surrogate (i.e., persons injured by unidentifiable operators of motor vehicles), and that the issues were of public importance thereby satisfying the second and third prongs of the exception, they did not satisfy the first. The court reasoned that the first prong requires that the issues must be of such limited duration that there is a strong likelihood that they will become moot in the vast majority of cases before reaching appellate review. The Appellate Court determined that the plaintiff’s claims against John Doe for lack of personal jurisdiction are not an action of inherently limited duration and could arise again in a case where the plaintiff will not have had reasonable time within which to attempt to learn the unknown driver’s identity, and in which the plaintiff’s claims for damages will not have been otherwise satisfied.

The court held that the case met all the requirements of the standard of being capable of repetition, yet evading review.

A challenge to the issuance of the injunction authorizing the nonconsensual blood transfusion will virtually always become moot long before the appellate litigation can be concluded. There was a reasonable likelihood that the question presented would recur, and that it would affect an identifiable group for whom the defendant was an appropriate surrogate to bring the appeal. The issues clearly were of public importance. Accordingly, the capable of repetition yet evading review standard was met. 236 Conn. at 653-655.

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.

7. ARTICULATION AND RECTIFICATION

The court, prior to several of the recesses taken during the course of the trial, instructed the jurors with regard to discussing the case, either among themselves or with others, before the evidence was concluded, final arguments heard, and the jury charge given. Initial transcript of the court’s instruction prior to the first recess in the trial instructed the jury that they must never discuss the case "with anyone, only among yourselves, only among yourselves during the breaks, during the lunch hour in the morning, but not with anyone at home or your neighbors."

The correction inserted the word "not" before "only," so it read that the jury must never "discuss the case with anyone, not only among yourselves during the breaks," etc.

The court held that so long as the trial court provides the opposing party an opportunity to respond to the motion, the trial court is free to rule at any appropriate time.

The rule, §4051, which governs transcript rectification, does not require hearing. In 1985 the hearing requirement was deleted. The court construed the 1985 deletion of the hearing requirement as vesting discretion in the trial court to determine whether to hold an evidentiary hearing before correcting the transcript. 235 Conn. at 495.

Justice Berdon, in a persuasive dissent, noted that it is fundamental, under both federal and state constitutional due process clauses, that a party whose rights are being affected has a right to be heard, and an opportunity to be heard must be granted "at a meaningful time and in a meaningful manner." 235 Conn. at 498.

Justice Berdon would hold that due process and fundamental justice required a hearing, which would have given the defendant an opportunity to examine the court reporter, who refused to talk to his counsel, and have another court reporter examine the stenographic notes.

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.

Trial court ordered defendant to proceed with his case prior to the completion of the state's case. Defendant objected. Discussion of the objection occurred in chambers. Appellate Court unable to review the defendant's claims on appeal because he failed to provide it with an adequate record. Defendant failed to state his reasons for objection on the record, he did not request that the court place the chambers discussion on the record or attempt to clarify the deficiency in the record by using the rectification procedure in Practice Book Section 4051.

State v. McNellis, 15 Conn. App. 416, 448-449 (1988).

The defendant on appeal claimed that his sentence was premised on a materially untrue criminal background. The court, notwithstanding that the defendant had been sentenced to 80 years, held that the record was inadequate to allow the court to decide whether the sentence was imposed in an illegal manner because the defendant had failed to supply the court with a copy of the presentence investigation report; a copy of the motion to vacate the illegal sentence; and a transcript of the imposition of a sentence for a 1969 offense where the prosecuting authority allegedly stated that the defendant had not assaulted anyone.

The court complained that there was not a clear statement of facts relevant to this issue, and that it was unclear whether the defendant was claiming that an inaccurate report of the 1969 assault incident was before the sentencing court or whether the sentencing court received accurate police reports but carelessly misinterpreted them. In any event, the court held that it could not respond to claims based on allegations extraneous to the formal record, nor to facts which have not been found and which were not admitted in the pleadings, or to documents or exhibits which were not part of the record. It stated, 15 Conn. App. at 449:

The court held that an ambiguity in trial court's memorandum of decision as to reasonableness of restrictive employment covenant would be resolved in favor of trial court's finding of enforceability, as that determination "implies a conclusion as to the reasonableness of all aspects of the covenant." Any ambiguity raised by the defendant should have been addressed by means of a motion for articulation.

of decision so as to substitute a new decision or

change the reasoning of the court's prior decision.

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

The court's initial memorandum of decision did not attribute the breakdown of the marriage to either party specifically. In an articulation requested to clarify the financial orders the court stated that it found "the conduct of the plaintiff, in large part, contributed to the marital breakdown." The articulation was requested because of an apparent inconsistency between the determination of fault and the financial orders which were "facially more favorable to the defendant." The Appellate Court determined that the articulation did not constitute a clarification or explanation of the court's reasoning based on the weighing of statutory criteria, but rather constituted a shift in position which made the Appellate Court unable to "discern whether the original memorandum or the articulation, if either, correctly represents a proper resolution of [the] case." Koper, 17 Conn. App. at 484. New trial was ordered.

Buchetto v. Haggquist, 17 Conn. App. 544 (1989).

Action for modification of a New York judgment dissolving the parties' marriage. Attorney trial referee's finding was unclear as to the defendant's obligation to provide funds for his children's college education. In the referee's report, it is noted that the divorce decree included a provision which required the defendant to "provide adequate funds for the higher education of the children if he is financially able to do so." In referring to this provision, the referee noted that it "appears to be more expression of intent rather than an affirmative legal obligation." On appeal, the parties disputed who had the burden of proving the defendant's inability to pay.

The court declined to review this question because there was no actual finding on the interpretation on the separation agreement. Although the plaintiff filed a motion for articulation, her request did not specifically address the issue on appeal and was a general request for clarification. The trial court merely adopted the trial referee's findings. Because the plaintiff did not request further articulation under 4061 or file a motion for review of the trial court's articulation under 4054, the court determined that it was not provided with an adequate record and declined to review the plaintiff's claim.

See also Braun v. Edelstein, 17 Conn. App. 658 (1989).

8. CROSS APPEAL AND ALTERNATE GROUNDS

The defendants prevailed on the trial, and on the plaintiff's cross-appeal raising the issue of res judicata. The Supreme Court noted that the presentation of the claim as a cross-appeal was defective because the defendants were not aggrieved. Practice Book §4005. Rather, the claim was an alternative ground for affirmance of the trial court's judgment under §4013. Nevertheless the court ruled on the claim.

After oral argument the plaintiff filed a motion, pursuant to §4038, seeking permission for a conditional withdrawal of his cross-appeal. §4038 provides in pertinent part that prior to oral argument, an appeal or writ of error may be withdrawn as of right. Thereafter, "it may be withdrawn only on motion to the court in which the appeal is pending." The plaintiff stated in his motion that he wanted to withdraw the cross-appeal if the court affirmed the trial court's judgment on the appeal. The court affirmed the trial court judgment on the appeal, and granted the motion to withdraw the cross-appeal.

The Supreme Court has discretion to decline to review an alternate ground to affirm under §4140. That rule permits an appellee, upon the granting of certification from the Appellate Court, to present for review alternate grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the Appellate Court.

The alternate ground raised by the defendants was that the charge was sufficient when viewed as a whole. The plaintiffs claimed that the alternate grounds were not adequate to affirm because they did not fully address all the claims of instructional error that the plaintiffs presented to the Appellate Court, but which the Appellate Court refused to review on general verdict grounds.

The court agreed that it would be impossible to determine whether the defendants' claims in the Supreme Court fully responded to the plaintiffs' claims in the Appellate Court. It declined to review the matter and remanded it to the Appellate Court for determination.

The defendant claimed that the trial court erred in failing to award supplemental interest and attorney's fees under Section 49-4la(b). On the original appeal the defendant did not file a cross appeal raising this issue as required by Section 4005 of the rules. After decision on the first appeal, the plaintiff again sought supplemental interest and attorney's fees by reclaiming the original motion. On the first appeal the trial court had failed to rule on the issue.

The Appellate Court held that this did not authorize the defendant to disregard the rules of court; rather, the defendant's remedy was to use the Rules of Practice to secure a ruling by the trial court on the issue. Where a trial court erroneously refuses to rule, a motion for rectification of the appeal addressed to the trial court pursuant to practice Book 4051, followed by a motion to review addressed to the Appellate Court under Section 4054, if necessary, would have been appropriate. The court noted that alternatively, the defendant could have requested under Section 4183 that the Appellate Court order the trial court to complete the record. Since the defendant did not follow any of these procedures, the court refused to review his issue on the second appeal.

9. DISMISSAL OF APPEAL

Defendant had challenged the original alimony order, which was upheld on appeal. He filed the present appeal from the denial of a motion for modification of the alimony order and filed an amended appeal from contempt orders. Defendant had been found in willful contempt three times and had paid the purge amount for each contempt or the amount set by the trial court. The appellate court found that he had continued his pattern of willfully failing to pay the alimony award.

In Broderick v. Broderick, 20 Conn. App. 146 (1989) the defendant was found in contempt by the trial court and was found to owe $7,000.50 in alimony and child support and had been found in contempt five times and consistently made the demanded payments after contempt finding. In the Broderick case the appellate court did not dismiss the appeal. However that decision is distinguishable from this case because the amount of support orders had not been upheld on appeal as they had been in this case.

In this case, defendant already had an appellate determination "upholding the alimony award and has nevertheless persisted in abusing the judicial system to avoid payment of court ordered support until he is threatened with incarceration or is actually incarcerated." 40 Conn. App. at 178. Accordingly, the appellate court granted plaintiff’s motion to dismiss the defendant’s appeal as amended.

Kelley v. Bonney, 221 Conn. 549, 559 (1992).

See also, Connelly v. Doe, 213 Conn. 66, 69-70 n.5, 566 A.2d 426 (1989).

Broderick v. Broderick, 20 Conn. App. 145 (1989).

An adjudication of contempt does not necessarily disqualify a party from affirmative relief, but an appellate court has discretion to decide whether contemptuous conduct warrants dismissal of an appeal. See, Greenwood v. Greenwood, 191 Conn. 309, 314 (1983).

Paranteau v. DeVita, 208 Conn. 515, 523 (1988).

The Appellate Court granted the plaintiffs' motion to dismiss the appeal in toto. The defendant filed a petition for certification which was granted by the Supreme Court, which held that the plaintiffs' appeal from the final judgment was not timely, but his appeal from the award of counsel fees was timely. It ordered "that portion of the defendant's June 26, 1987 appeal challenging the trial court's May 27, 1987 judgment on the merits was properly dismissed by the Appellate Court as untimely filed . . . " It further concluded that that portion of the appeal from the award of counsel fees on June 18, 1987 was timely, and reversed the Appellate Court's dismissal of that portion of the appeal. Resort had to be made not only to the jurisdictional statement in the appeal, but to the preliminary statement of issues in order to determine what was before the court. The court noted, 208 Conn. at 518, that it was the defendant's preliminary statement of issues which indicated that he was appealing not only the May 27 judgment on the merits, but also the subsequent award of attorney's fees.

10. ERROR

Citing Byrne v. Trice, 170 Conn. 442 (1976) the Appellate Court held that the "appeal can best be categorized as valiant but futile effort to retry the case in this court." It refused to discuss any of the defendant’s claim, and cited Byrne v. Trice, supra.

In Byrne the Supreme Court stated (170 Conn. at 442-443):

(a) Preservation of Error

(i) Charge

Defendant was convicted of the crimes of sexual assault in the second degree and risk of injury to a child. The child, nine years old at the time of the crime, testified on the trial. The defendant excepted to the failure of the trial court to instruct the jury on the credibility of a child witness. He claimed that the issue was properly before the Appellate Court on the basis of an exception taken immediately after the charge.

The Appellate Court refused to review the issue because of the defendant’s noncompliance with §852 of the Practice Book. Section 852 of the Practice Book is identical to §315, which applies to civil cases. Before §852 was enacted, a long line of cases interpreted §315, and its predecessors, §249 of the 1963 Practice Book, and §153 of the 1951 Practice Book. These cases establish that certain basic elementary features of the case implicate a duty on the part of the trial court to charge, even in the absence of a written request, and it is only those special features of a case which mandate a written request in order to predicate error, even if an exception is taken. The Appellate Court’s interpretation of §852 in this case, and in State v. Frye, 26 Conn. App. 472, 478 (1992) that §852 applies only where the trial court has misstated applicable law, and does not apply where there is a failure to instruct on something that was never requested in writing prior to the jury instructions is plainly wrong.

Sections 852 and 315 of the Practice Book read as follows:

The rules state the requirement in the disjunctive. There must be either a written request to charge which is not given, or an exception to a portion of the charge as given. If a written request is made and not given by the court, an exception is unnecessary to preserve the issue for appeal. However, the converse is not necessarily true. If there is no request, an exception may be insufficient if the subject implicates a special feature of the case.

Maltbie, Section 106, p. 128, referring to Section 153 of the 1951 Practice Book, states that in addition to the provision requiring written requests on certain issues (now Section 316) there is also a rule developed under the cases that for specific instructions on some special feature of a case there must be a written request to charge filed.

The following cases support this rule, holding in effect that where the charge is otherwise adequate, had the complaining party desired more particular instructions on the issue involved he should have requested them:

Maltbie goes on to state (Section 106):

The cases Justice Maltbie referred to are Lane v. Ludman, 131 Conn. 112, 117, 38 A.2d 178 (1944); State v. McCarthy, 133 Conn. 171, 178, 49 A.2d 594 (1946); and Borsoi v. Sparico, 141 Conn. 336, 372, 106 A.2d 170 (1954).

In the Lane case, a child pedestrian was struck by a car; there was a defendant's verdict and the plaintiff appealed complaining that the charge respecting the duty of the operator of the automobile to warn was inadequate. The court stated (131 Conn. at 117):

In the State v. McCarthy case, three men were charged with killing a guard in an attempt to escape from state's prison. One confessed and the confession was offered in evidence in the trial of the three for the crime. The two defendants who did not confess claimed that the court failed to charge respecting the lack of evidence to prove their participation in certain details of the plan as related in the confession. The court stated (133 Conn. at 178):

In the Borsoi case, the defendant claimed that the court erred in failing to give the jury any instructions suited to the particular case, chiefly because the plaintiff was the only witness on the issue of liability and the defendant did not offer any evidence at all. The defendant did not file any request to charge and the court stated (141 Conn. at 372):

There is an obvious limitation upon the "special features" rule, however, as pointed out in Riley v. Connecticut Company, 129 Conn. 554 (1943), and Worden v. Francis, 153 Conn. 578 (1966). That limitation is that error will not be based on an omission to charge on a specific point as to which no request was made, provided the charge as a whole is sufficient to guide the jury in deciding the issues. State v. McCarthy, supra; Giddings v. Honan, 114 Conn. 473, 475 (1932); Mavrides v. Lyon, 123 Conn. 173, 176 (1937); Coy v. Milford, 126 Conn. 484, 488 (1940).

The court in the Riley case went on to state that when the omitted instructions are essential to a proper and complete consideration and decision of the case, failure to include them constitutes error, even though the court's attention was not called to the point by a written request to charge.

Maltbie (Section 106, p. 129) states that except where a request to charge is required under the rule or under the cases, it is the duty of the court even in the absence of a request to give the jury a proper and adequate charge and at least if proper exception is taken at its conclusion, a failure to do so may constitute reversible error.

In Foss v. Russo, 156 Conn. 230 (1968), the plaintiff claimed that the defendant, who was approaching in the opposite direction, turned his car to the left into the plaintiff's path when he was about 25 to 30 feet from the plaintiff's car, and that this caused the collision. The plaintiff filed no requests to charge, but took exception to the court's failure to charge on the applicability of the emergency doctrine, and on the effect of certain admissions made by the defendant. On appeal the court reversed, holding that the facts of the case warranted the charges excepted to, even in the absence of a request (156 Conn. at 232-233).

In Gravely v. Townsend, 163 Conn. 360, 364 (1972), the court held that even in the absence of a written request, on the facts of the case as developed on the trial "it was the duty of the court adequately to explain to the jury the nature and application of the doctrine of concurrent negligence as related to the circumstances of the case . . ." (emphasis added)

In Mei v. Alterman Transport Lines, Inc., 159 Conn. 307 (1970), the court found error, again in the failure of the court to charge on the emergency doctrine, even where the request was defectively drafted and correctly ignored. The court's language is instructive (159 Conn. at 310-311):

The following conclusions can reasonably be drawn from the above analysis:

1. There is a clear duty of the court to charge on material and important features of a case, even in the absence of a request.

2. The doctrine of sudden emergency, concurrent negligence, and the legal effect of admissions are material and important features of a case if the facts give rise to their application. Similarly, where the complaining witness is a child, the facts give rise to a duty to charge on the rules applicable to the credibility of a child witness, even in the absence of a request.

3. The court has a duty, and counsel have a right to expect, even in the absence of a request, a charge not only on "material and important" issues in a case, but also on those issues which are basic and fundamental to the case and which inhere in virtually all jury cases. For example, it should be unnecessary, on the above authorities, to request a charge on such fundamental rules of law as the doctrine of inferences; the credibility of witnesses; the credibility of experts; proximate causation; the burden of proof; the presumption of innoncence; the definition of negligence; or on the basic rules for assessing liability, guilt, or damages.

Similarly, in a malpractice or products action, the basic features of such cases, such as the essentials for recovery, or on issues "material and important" to the specific case, involve a duty of the court to charge, are not "special features," and the failure to charge in the absence of a request but with timely exception should be sufficient to bring about a reversal.

4. As reflected in the extensive quote from Mei v. Alterman Transport Lines, supra, it is good practice to take specific exception to the court's failure to charge as requested. There is always the risk that on microscopic examination of the request some defect will be found.

Defendant convicted of murder and of carrying a pistol without a permit. His primary defense on trial was alibi. He claimed he stopped at church some time after dark on the day of the crime and saw his brother, the Reverend Kimber, and Randy Hodges. His brother and Reverend Kimber testified at trial, but not Randy Hodges. Hodges was in state custody at the time in an unrelated crime.

The trial court charged, over the defendant’s objection, that the jury could draw an adverse inference from the defendant’s failure to call Hodges as a defense witness. The defendant took exception to this charge, but nevertheless the Appellate Court refused to review on the basis that the defendant gave no reason or basis for his exception. The court found that defendant’s claim was not distinctly raised and therefore did not merit review, and did not come within the Evans-Golding bypass. 35 Conn. App. at 359.

The adverse inference charge is given if a witness would naturally be produced by a party and is available but not called. It does not take a rocket scientist to determine the basis of a claim of error in the giving of an adverse inference charge under these limited circumstances. It is incomprehensible that in a murder prosecution our Appellate Court would deny review because the exception did not say that there was insufficient evidence of availability, or an inappropriate determination made that the witness was one who would naturally be called.

In State v. Angell, 36 Conn. App. 383, 394 (1994) there was a discussion on the record in open court concerning whether the court should give the missing witness charge under Secondino. The Appellate Court had refused to review this issue on the basis that no written request had been filed as required by §852 of the Practice Book. The defendant, immediately after the trial court denied the oral request, took an exception and argued that his exception was sufficient to preserve the claim. He argued that State v. Kish, 186 Conn. 757, 770 (1982) supported his claim, but the court distinguished Kish because there the exception was taken after the charge, not before.

With respect to oral requests, the court stated:

The trial court is required to submit all issues as outlined by the pleadings and reasonably supported by the evidence. The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.

The interpretation of pleadings is "always a question of law for the court." Thus, in order to evaluate the trial court’s decision not to charge the jury on a liberty interest claim, the court must first decide whether the pleadings alleged such a claim. 36 Conn. App. at 290.

The defendants requested a charge concerning proper lookout and the degree of error required of the defendant, who was operating a truck. The trial court failed to give the charge, and the defendants took exception. In response to the exception, the trial court gave a supplemental charge regarding proper lookout. The plaintiff failed to take exception to the supplemental charge, but claimed on appeal that the trial court acted improperly in giving the supplemental charge. The court held that because the plaintiffs failed to take an exception to the recharge, they had failed to preserve the issue for appellate review.

Plaintiff objected to the court's initial charge with respect to the difficulty of proving pain and suffering, but failed to object to the remaining two charges on this issue. The Appellate Court, in reviewing the reviewability of this issue, cited Practice Book Rule §315 which provides that jury instructions are reviewable if "the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered." The Appellate Court noted that the trial court never made any specific corrections to the first instruction to which plaintiff objected. In the second instruction, the court merely repeated the initial charge without correction, and in the third instruction, the court simply referred the jury back to the first instruction. Therefore, the plaintiff was not required to object to each subsequent instruction.

Plaintiff failed to take exception to the trial court's reference in its charge to the defendant's explanation for disposing of his property. Plaintiff raised the issue in the motion to set aside, but this was held to be insufficient. The purpose of the rule requiring an exception to the charge as given is to provide the trial court with an opportunity to cure defects or ambiguities in the charge. Because the plaintiff failed to take exception after the charge, the error was waived.

Wrongful death action brought against defendants for reckless and wanton serving of alcohol to an intoxicated person. Trial court instructed the jury that they could find the defendants liable only if their conduct was a substantial factor in causing the decedent's death. The court also stated that the plaintiff's estate is entitled to recover damages for the destruction of the decedent's earning capacity.

HELD: Instructions were inadequate. A legal causal connection between the conduct and the resulting injury is a necessary element of causes of action in recklessness. To be a legal cause, the conduct must be both a cause in fact and a proximate cause of the resulting injury. Causation was a highly disputed issue in this case. The relevant terms should have been adequately explained to the jury.

PROXIMATE CAUSE: The test for cause in fact is: would the injury have occurred were it not for the actor's conduct? A proximate cause is an act or failure to act which is a substantial factor in producing a result. To be factors of this degree they must have continued down to the moment of the damage or at least down to the setting in motion of the final active injurious force which immediately produced or preceded the damage. Id. at 540.

Oakes v. New England Dairies, Inc., 219 Conn. 1, 8 (1991).

Post trial motions are not the functional equivalent to an exception to charge. The reason is that the motions are filed subsequent to the verdict, and do not provide the trial court with timely opportunity to remedy any error.

State v. Hernandez, 218 Conn. 458, 461-2 (1991).

A trial court often has not only the right, but also the duty to comment on the evidence. Trial court extensively detailed state's claims and its evidence and made little reference to the defendant's exculpatory evidence or his theory of defense.

HELD: The case was presented to the jury in such a way that injustice was done to the defendant and that he was prejudiced thereby.

Wasfi v. Chadda, 218 Conn. 200 (1991)

Several issues of errors in the charge were raised. In connection with the court's determination that there was no error on the thrice-given charge on intervening cause, the court stated that the trial court told the jury to disregard the first two charges, and the third was described as "not a model of clarity," some of its sentences were "obviously jumbled" and "incomprehensible." The court referred to the overall charge and various parts of the decision as "unfortunate" (p. 208), "confused" (p. 209), "not a model of clarity" (p. 213), "obviously jumbled" (p. 214), "incomprehensible" (p. 214), and "deficient" (p. 218).

State v. Jennings, 216 Conn. 647, 665-6.

Clarification of the instructions when the jury or one of its members manifests confusion about the law is mandatory. The practice of submitting written instructions to the jury is permissible but not constitutionally required. Oral instructions sufficient.

The criminal rule for requests to charge is Section 854 of the Practice Book, requiring that every request to charge be set forth in separately numbered paragraphs, "each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the

proposition would apply." The civil rules are set out in Section 315-318 of the Practice Book. Section 317 requires the written requests to charge to be filed in triplicate, and Section 318 provides that where there are several requests, they shall be in "separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply." Both Sections 318 and 854 provide that requests should not exceed 15 in number, unless the court permits an additional number for good cause shown.

Because the rules are essentially the same, rulings on the adequacy or inadequacy of requests in criminal cases are precedent for civil cases. In the cited case, the defendant failed to provide any legal authority from any jurisdiction to support his argument that operating while impaired is a lesser included offense of operating under the influence, apart from the citation to General Statutes Section 14-227a(b). In a footnote (15 Conn. App. at 65, n. 3) the court noted that:

The court found the defendant's request so fatally inadequate that it refused to review the matter. The dissent criticized this approach, stating that the trial court was sufficiently alerted by the request filed, and that the issue turned on a clear question of law. 15 Conn. App. at 71.

After noting that the defendant took no exception to the charge, the court stated:

Defendant on appeal claimed that the trial court presented the plaintiffs' claims to the jury as proven, but failed to present the defendant's claims in the same manner. The court held (15 Conn. App. at 415):

The court observed that the trial court at several points during the charge gave cautionary instructions, reminding the jury that it was its perception of the facts and not the court's which was to serve as the basis for its deliberations. The Appellate Court stated that "we acknowledge that while such corrective instructions will not cure an unfair charge, such cautionary instructions do tend to remove any doubt that the court properly discharged its duty of leaving the jury free to determine the facts and draw their own conclusions therefrom." 15 Conn. App. at 415.

Nisbet v. Olmeda, 15 Conn. App. 6, 13-14 (1988).

The court is not bound to consider a claim of error as to the giving of, or the failure to give, a jury instruction unless the claimed error is covered by a written request to charge or an exception has been taken by the appellant immediately after the charge is delivered. Practice Book Section 315. The exception taken "shall state distinctly the matter objected to and the ground of objection."

In lieu of a request to charge, plaintiff filed a written set of "Proposed Jury Instructions" consisting of nineteen pages and "purporting" to be a complete charge covering all relevant instructions, general and specific, pertaining to the issues before the court, in a ready made format for delivery by the trial judge to the jury and in a text desired by the plaintiff. In no respect did this charge conform to or meet the requirements of "Practice Book Section 854." The court then quoted extensively from Section 854, to the effect that when there are several requests, they shall be in separate numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. The rule also requires that requests do not exceed 15 in number, unless for good cause shown, the court permits the filing of an additional number.

It is unfortunate that the court cites Section 854, which does not apply to civil cases; only to criminal. Essentially the same provisions are found in Sections 315 through 318.

In Bombero v. Marchionne, 11 Conn. App. 485, 491-492 (1987) the plaintiff complained because the trial court had charged the jury equivocally concerning the life expectancy of the plaintiff, who was age 29. The plaintiff's life expectancy was 44.5 years, and the charge reasonably could be understood to mean that the plaintiff would live 44.5 years. Plaintiff had argued very clearly that he was entitled to compensation over the next 44 years. On appeal he claimed that the charge was unclear and could have led the jury to believe that the plaintiff would only live until age 44.5. The court held that (11 Conn. App. at 492):

Accordingly, the court concluded that the charge, read in the light of counsel's argument, was not error as the jury could not have been misled. See also State v. Belton, 190 Conn. 496, 502 (1983); Tripp v. Anderson, 1 Conn. App. 433, 435-436 (1984).

Preservation of the record for appeal was discussed in Bauman & Garrity of Lakeville, Inc. v. George E. Emerson, Inc., 14 Conn. App. 261 (1988) (Borden, J.). This case, which discusses the propriety of the court's charge to the jury on condition precedent to a construction contract, is notable for its discussion in footnote 2 of the adequacy of counsel's exception to the charge. The court, distinguishing this case from Smith v. Czescel, 12 Conn. App. 558, 562 n. 2, 533 A.2d 223 (1987), found that counsel complied with the requirements of Practice Book Section 315 to "state distinctly the matter objected to and the ground of objection" where counsel persisted in stating his exception after being cut short by the trial court. 14 Conn. App. at 263 n.2 (pp. 263-264).

(ii) Rulings.

§4185 - Errors Considered

The court on appeal shall not be bound to consider a claim unless it was distincly raised at the trial or arose subsequent to the trial. The court may in the interest of justice notice plain error not brought to the attention of the trial court.

§288 -

Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as counsel desires it to go upon the record, before any discussion or argument is had.

Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 30 (1993) held that the October 1, 1993 amendment to §288 deleting the necessity for taking an exception to an evidentiary ruling applies retroactively.

The purpose is to advise the trial court of the precise nature of the objection in order to form an adequate basis for a reviewable ruling. State v. Braman, 191 Conn. 670 (1983). Record must reveal the grounds for the objection or review will be denied. State v. Manning, 162 Conn. 112 (1971).

It was held error for the trial court to deny permission to make an offer or proof in State v. Zoravali, 34 Conn. App. 428 (1994), although the court found the error harmless. An offer of proof, in addition to informing the trial court of the specific nature of the evidence and the legal theory under which is it claimed to be admissible, creates a record for appellate review. State v. James L., 26 Conn. App. 81 (1991). See also, State v. Barnes, 33 Conn. App. 603 (1994); Suffield Bank v. Berman, 228 Conn. 766 (1994).

The Supreme Court refused to review the claim that the State made an improper closing argument in a murder prosecution case, where neither party requested that closing arguments be recorded.

Where parties do not request the formal recordation of closing arguments, the appellate record is insufficient for the court to undertake a proper review of claims.

Murder prosecution in which the prosecutor made the following rebuttal argument: "There's court house lore here - and these things grow up in a court house - one of them says that women aren't tough enough to convict or they let emotion cloud their judgments and that's what happens on an average jury. Well, none of you believe that and we didn't pick you believing that or there wouldn't be any women on this jury." State v. Williams, at 263. After closing arguments were finished, defense counsel objected to the prosecutor's comments concerning female jurors as follows: "I object to those aspects of the closing which talked about court house lore that women on the jury can't convict, which is a test to the women on the jury to show how tough you are, you have to convict. That kind of gender argument as is inappropriate as a racial argument and is wrong and is improper and I ask that a curative instruction be given on that." State v. Williams, at 264. The trial court refused to give a curative instruction. The Supreme Court affirmed.

The majority conceded that "the prosecutor's statement amounted to a challenge to the women jurors to convict the defendant or risk condemnation as being soft or emotional. The State's argument could have subjected the female jurors to pressure from other jurors." State v. Williams at 247. The majority ruled that defense counsel had not objected with sufficient specificity. Justice Berdon dissented.

(iii) On appeal.

Esposito v. Schiff, 38 Conn. App. 726 (1995).

In a medical malpractice action the trial court instructed the jury not to consider plaintiff’s allegation that the defendant failed to inform the plaintiff that he did not secure and remove all of the kidney stones. On appeal, plaintiff claimed that the trial court erred by directing the jury not to consider the allegation of failure to inform because the court found that there was insufficient evidence of an injury, i.e., emotional distress.

At trial, the trial court stated: "I don’t see in the record the evidence of injury that flowed from a failure to tell of the stones." 38 Conn. App. at 728 (emphasis added).

The Appellate Court found that the plaintiff failed to comply with the requirements of §4065(c) which provides that the appellant shall include a statement of the nature of proceedings and facts of the case in his or her brief. There were no references to any transcripts in the plaintiff’s statement of facts. The only transcripts filed by the plaintiff were the plaintiff’s testimony, the charging conference, the jury charge and the argument on the motion to set aside the verdict.

The Appellate Court reviewed plaintiff’s claim limited to the reason the trial judge gave for instructing the jury not to consider the allegation of the failure to inform. The Appellate Court relied on Supreme Court decisions interpreting the word "flow" to mean proximate cause. The Appellate Court found that the plaintiff did not provide it with a record of any evidence of proximate cause on the issue raised on appeal to contradict the trial court’s ruling. It was the duty of the appellant to provide an adequate record.

The court held that assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed.

Plaintiff claimed that the trial court failed to create a proper record of proceedings when a portion of the testimony was read back to the jury in response to an inquiry from the jury. The Appellate Court refused to review the issue because the appellant did not define which portion of the testimony constituted prejudicial error, what the issue would be if the transcript was available, nor did the appellant analyze the specific harm resulting from the inability to raise the issue.

The Appellate Court held that it has long been strong policy that if evidentiary rulings claimed to be improper are to be reviewed, they must be set forth in the briefs as required by the Rules of Practice. §4065(d)(3) sets out the rule. The mere assertion in a brief that the evidence was improperly excluded, with reference to transcript page numbers, is insufficient.

In Re Lea T., 15 Conn. App. 455, 457 (1988).

Judgment entered terminating the parental rights of both parents, from which the father appealed to the Appellate Court. Seven witnesses testified in the trial court. The father provided the Appellate Court with transcribed testimony of only three witnesses, omitting among other witnesses the testimony of the child's foster mother upon which the trial court relied heavily in its decision that the parental rights of the mother and father should be terminated. The father's issue on appeal was the sufficiency of evidence to support the conclusion of termination of parental rights by clear and convincing evidence.

The court held:

The court, rather than deferring decision or ordering the father to supplement the record with the remainder of the transcript, found no error, and never reached the issue of the sufficiency of evidence.

Henry v. Klein, 15 Conn. App. 496 (1988).

The rule, 4065(d)(3), provides that when error is claimed in a ruling, the brief or appendix must include the question or offer of the exhibit, the objection and the ground on which it was based, the answer, if any, the ruling, and any exception. The rule also provides that when the basis of the ruling cannot be understood without a knowledge of the evidence or proceeding which preceded or followed the ruling, a brief narrative or verbatim statement of the evidence or proceedings should be made.

Mere reference in the brief to pages in the transcript is not sufficient to comply with the rule. The evidence must be set out, and the transcript may not be incorporated into the brief by reference. 15 Conn. App. at 499-500.

Presenting a claim or alternative claim to a properly briefed claim by way of footnote runs the risk of the court's refusal to review, based on 4065(d) providing that briefs shall contain an argument divided under appropriate headings into as many parts as there are points to be presented.

State v. McNellis, 15 Conn. App. 416, 420, n.2 (1988).

Defendant claimed a state constitutional violation in connection with an unreasonable search. He merely cited State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985), as support for the proposition that the state constitution affords more substantive protection to citizens than does the federal constitution in determination of probable cause to arrest. The court held that the defendant had failed to provide any analysis to distinguish or amplify his state constitutional claim with respect to this issue, and refused to undertake such an analysis and to review the claim.

In State v. Mancinone, 15 Conn. App. 251, 272 (1988), the defendant's argument in his brief consisted of the following:

The court declined to review the claim because the record consisted of 15 volumes of transcript and numerous exhibits, and it had no way of knowing, from the defendant's brief or appendix, what claims or preliminary showings were made at trial. The problem here is that the trial court ordered several exhibits sealed. The defendant was denied access to these exhibits, and could not very well articulate the factual or legal argument if he did not know what was in them. Defendant knew the general nature of the documents: several contained family relations records, school records and youth service records, and several others were witness interview notes to which access was denied.

See also State v. Walzer, 208 Conn. 420, 423, n. 2 (1988); State v. Plourd, 208 Conn. 455, 472, n. 13 (1988).

In a series of recent decisions, the Supreme Court and the Appellate Court have refused to review issues inadequately briefed. In Gerrety Co. v. Palmieri, 11 Conn. App. 226, 232 (1987) the court refused to review a plaintiff's claim of error because he cited no authority. The court stated "as we have no adequate briefing of this issue, the claim is therefore not reviewable." See also Griffin v. Muzio, 10 Conn. App. 90, 94 (1987); State v. Ramsundar, 204 Conn. 4, 16 (1987); State v. Hernandez, 204 Conn. 377, 382 (1987). In Hernandez, the court stated that the defendant mentioned a claim of error in his brief, but "has failed to formulate any reasoned legal argument with respect to how the trial judge's restriction affected his right to a meaningful voir dire." In light of this "briefing failure," coupled with the lack of any citation to legal authority for this claim, the court declined to undertake review of it.

See also Goold v. Goold, 11 Conn. App. 268, 287 (1987), cert. denied, 204 Conn. 810 (1987) and DeLucia v. Burns, 11 Conn. App. 439, 444, n. 7 (1987), cert. denied 205 Conn. 803 (1987).

(iv) Miscellaneous

Defendant claimed on appeal that a witness' prior statement to the police was not admissible at trial as substantive evidence. He failed to raise the issue in the trial court, and the Supreme Court held that he is "precluded from raising it here," 208 Conn. at 459, n. 4, and specifically held that the jury could reasonably have credited the witness' first version given to the police, rather than the version testified to by the witness, which the court characterized as an attempt to exculpate her father (the defendant).

It is odd that the court would apply the rule so rigidly in a murder prosecution. If there is no objection to evidence admissible for one purpose but not another, and frequently is not, it means that on appeal the court can credit the testimony for whatever its worth for any purpose. Crediting a prior inconsistent statement admissible only on credibility, and not objected to for any other purpose, as a partial basis for a murder conviction seems extraordinary.

As to the use of incompetent or inadmissible evidence which gets in by agreement or because it was not objected to, see Cohen v. Cohen, 11 Conn. App. 241, 248-249 (1987), holding that such evidence can be used "for whatever it was worth." 11 Conn. App. at 249. Note, however, that if the evidence has "no probative force, or insufficient probative value to sustain the proposition for which it is offered, the want of objection adds nothing to its worth and it will not support a finding." 11 Conn. App. at 248.

Defendant objected on sixth amendment and hearsay grounds to the admissibility of a tape recording. Trial court ruled that the tape was admissible to show constancy of accusation. The defendant did not object again when the trial court permitted the jury to take the tape into deliberations. The defendant claimed error in admitting the tape into evidence and in permitting the jury to take it. The state argued that the defendant did not preserve this issue for appeal. Court disagreed and held that the objection to the admissibility was sufficient to express his objection to its submission to the jury. "The purpose of any evidentiary objection is to prevent the evidence from being considered by the trier of fact." 20 Conn. App. at 130.

State v. Mercer, 208 Conn. 52, 60 (1988).

The court held that the trial atmosphere was not "utterly corrupted" by the disclosure that the defendant supposedly had AIDS. It held that in evaluating the effect of the disclosure, it considered one factor, the defendant's failure to object, of particular significance. The defendant's failure to complain of the trial court's disclosure essentially represented acquiescence in the trial court's actions. The court reasoned that implicit in such acquiescence was the defendant's perception that the court's manner of proceeding would lessen rather than increase whatever prejudice resulted from the previous public disclosure of his condition.

(b) Harmless error.

State v. Mercer, 208 Conn. 52, 61 (1988)

Swenson v. Sawoska, 215 Conn. 148, 153 (1990).

MVA, negligence, verdict for defendant. Appellate court found that admission of police narrative was harmless error by determining that there was sufficient other evidence to support the jury's verdict. Held: this standard of harmless error is incorrect. The standard for harmless error in a civil matter is whether the erroneous ruling would likely affect the result. Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the jury, it meets the test of materiality.

If erroneously admitted evidence is merely cumulative of other evidence presented, its admission does not constitute reversible error.

Here the plaintiff claimed that the impact pushed her car up a slippery hill. The narrative claimed she was attempting to go up the hill when she was struck by the defendant. The other evidence indicates that she must have been going up the hill. Therefore, the narrative was merely cumulative.

(c) Induced error.

The court restated the general rule that a party cannot seek appellate review of an instruction that he requested and on appeal claims was improper. Ordinarily, action induced by an appellant cannot be ground for error. State v. Walton, 227 Conn. 32 (1993); State v. Scognamiglio, 202 Conn. 18, 25 (1987); State v. Shipman, 195 Conn. 160, 165 (1985).

Unpreserved claims of constitutional magnitude, even when induced by an appellant, may be reviewed in a criminal case pursuant to State v. Evans, 165 Conn. 61 (1973), and State v. Golding, 213 Conn. 233 (1989).

(d) Plain error.

Dionne v. Markie, 38 Conn. App. 852 (1995).

Personal injury action where trial court failed to charge jury on the statutory presumption, §52-182, that defendant, the son of the owner, was operating the motor vehicle within the scope of his father’s authority. The car driven by defendant was owned by his father, Paul Markie, doing business as Markie Motors, and T.K. Sales, Inc.

The trial court instructed the jury on the family car doctrine but failed to instruct on the statutory presumption. Instead, the jury was instructed that the burden was on the plaintiff to prove all elements of the family car doctrine. Even though plaintiff did not object to this instruction the court’s failure to charge on the language of §52-182 required plain error review because the court failed to comply with the express statutory language of §52-182.

The court allocated the burden of proving that the defendant was acting under the general authority of his father and his father’s company, to the plaintiff without the benefit of the statutory presumption. Under §52-182 the plaintiff was entitled to a presumption on the issue of general authority upon proving that defendant was the son of the owner of the car. Judgment was reversed and the case remanded for a new trial.

The trial court, when releasing the jury at the end of the first day of trial, instructed the jury:

There was no objection or exception taken to this instruction. The state on the defendant's appeal argued that the instruction was not improper because the "case" itself was not being discussed. The state pointed out that the evidence was not to be discussed, and the evidence was all that the jury could consider in reaching a verdict. It also argued that the fact that no one "heard the judge's remark as wrong at the time of trial" is a strong indication that it was not understood as allowing discussion of the case.

The Appellate Court noted plain error because the charge was in violation of §850 of the Practice Book, and to allow a juror to "discuss" the topics of personalities or the charges is "to invite the juror to the subject to an outside influence." The court stated that a "private talk is likely as exposure to the news media to interfere with the exercise of deliberate and unbiased judgment of a juror."

In a bizarre turn, the court remanded the case for an evidentiary hearing on whether the state could show that the error was harmless beyond a reasonable doubt. 34 Conn. App. at 707. Apparently the state will have to put on each juror and inquire who they discussed the case with, what they talked about, and whether it was limited to "personalities" or "charges."

The court noted that plain error is reserved for instances where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceeding. It then stated that failure to follow mandatory provisions of a statute proscribing trial procedures or to follow a procedural rule constitutes plain error, relying on State v. Johnson, 214 Conn. 161, 171 n. 10 (1990); and State v. Pina, 185 Conn. 473, 482 (1981). State v. Johnson refused to find plain error because the defendant did not follow a rule of practice, and in State v. Pina, the rule prohibited the court from changing the defendant's sentence after 90 days, and the court on the 98th day from sentencing made the sentence consecutive rather than concurrent.

The fact is, whether or not a rule of practice was violated, plain error under Connecticut law exists on the authority of State v. Washington, 182 Conn. 419 (1980) holding that it is a denial of due process for a trial judge to expressly instruct jurors that they may discuss the case among themselves prior to its submission. The Washington decision is so strong that any authorization to discuss any topic concerning the matter, whether personalities, charges, or the weather, if it relates to the case, is prohibited.

The defendant argued that during the closing argument the prosecutor invited the jury to convict the defendant of the crime charged on the basis of prior convictions. He failed to make a timely objection to the closing argument, and requested the Appellate Court to review the claim pursuant to the Evans-Golding doctrine. The court held that the defendant failed to demonstrate that a constitutional violation clearly existed and clearly deprived him of a fair trial. The prosecutor’s closing argument is set out at 36 Conn. App. at 414 n. 9, and certainly does look like she argued that the jury ought to convict the defendant based on his prior convictions. It is unclear whether, had the defendant objected in timely fashion, there would have been a different result.

The defendant lessor, on the grant of certification, appealed to the Supreme Court from the Appellate Court's decision determining that the jury award of zero damages of plaintiff tenant's claim for breach of lease agreement manifested such juror confusion that a new trial on that claim was required.

On the tenant's appeal to the Appellate Court, the only issue was the award of zero damages on the theory that the trial court had misinstructed the jury on mitigation of damages. The Appellate Court did not address the merits of this issue. Instead, it concluded that the jury's award should be set aside because it manifested confusion "about liability, about damages, about the mitigation of damages, or all three. Therefore, the jury's award of zero damages is improper ..."

The Supreme Court noted that in civil actions seeking money damages a litigant is not entitled to plenary appellate review of a claim of error that was not presented to the trial court by way of timely motion to set aside verdict, citing Pietrorazio v. Santopietro, 185 Conn. 510, 512-515 (1981).

In the absence of an appropriate motion to set aside verdict, appellate review of the claim found to be error by the Appellate Court was limited to "plain error review." Plain error review is (230 Conn. at 98):

The court held that the Appellate Court abused its discretion in its ruling for three reasons (230 Conn. at 99):

The question presented was whether the trial court properly applied the remedy provisions of the Uniform Partnership Act, §34-66, to a limited partnership. The issue was not raised before the trial court or on appeal. The Appellate Court ordered supplemental briefs, and held:

The trial court instructed the jury that it could draw no "unfair" inferences from the defendant's failure to testify. On appeal the state argued that the improper instruction was harmless when the charge was viewed as a whole along with instructions to the prospective jury panel and the preliminary instructions to the sworn jurors.

The Appellate Court held that it was reasonably possible that the trial court's use of the word "unfair" rather than "unfavorable" misled the jury allowing it to draw a fair although unfavorable inference from the defendant's failure to testify. The Appellate Court found that the final charge, when viewed as a whole, did not cure the defect. The trial court specifically discussed the defendant's failure to testify only in the context of the improper portion of the instruction. Even though the trial court instructed prospective jurors that they could draw no unfavorable inferences from the defendant's failure to testify at least one week had lapsed between the instructions and the court's final charge. The Appellate Court also noted that preliminary instructions do not supersede instructions given after evidence and arguments. Accordingly, the Appellate Court held that the state had not maintained its burden of establishing harmlessness and reversed and remanded the case for a new trial.

1052. Plain error.

Plain error is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Person, 215 Conn. 653, 666 (1990), cert. denied, 111 S.Ct. 756, 112 L.Ed.2d 776, 59 U.S.L.W. 3406, 3477, 3481 (1991), citing State v. Hinckley, 198 Conn. 77, 87-88 (1985); State v. Moore, 23 Conn. App. 479, 483 (1990), cert. denied, 217 Conn. 802 (1991) (Court reviewed claim that the burden of proving an essential element of the crime charged was shifted to the defendant even though defendant failed to object to jury charge and did not make a claim under Evans.)

The trial court committed "obvious error" by failing to recognize that Section 22a-43(c) requires the approval of all the parties to an appeal, before a settlement agreement modifying the agency decision that is the subject of the appeal may be approved.

Although the plaintiffs failed to properly preserve their claims of error with regard to jury instructions because they neither filed a request to charge nor took exception to the charge in Smith v. Czescel, 12 Conn. App. 558, 563 (1987) (Borden, J.), cert. denied, 206 Conn. 803 (1987) the court overlooked these "gross procedural inadequacies" and reviewed the claim under the plain error doctrine.

11. FRIVOLOUS APPEAL

Zaleski v. Zaleski, 21 Conn. 185, 190 (1990).

"The action is frivolous...if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument...for an extension, modification or reversal of existing law." Comment to Rule 3.1 of the Rules of Professional Conduct. The burden of proof lies on the moving party to establish the frivolity of the appeal. Presentation of a frivolous appeal or frivolous issues and defenses on appeal will subject the offender, at the discretion of the court, to appropriate discipline, including fines, costs and expenses, including attorney's fees.

In Texaco, Inc. v. Golart, 206 Conn. 454 (1988) (Glass, J.), the court adopted the definition of frivolous appeal set out in the Rules of Professional Conduct, Rule 3.1, which states that (206 Conn. at 464):

The court placed the burden of proving the frivolity of the appeal on the party moving for sanctions under Section 4184.

12. GENERAL VERDICT RULE

In a dental malpractice action, plaintiff alleged that defendant dentist failed to obtain informed consent before extracting plaintiff's wisdom teeth. The jury rendered a verdict for the defendant from which plaintiff appealed. Plaintiff asserted that the trial court improperly denied his motion for a directed verdict and his motion to set aside the verdict.

On appeal defendant argued that the general verdict rule applied to this case, therefore precluding appellate review of plaintiff's claim. The Appellate Court, in agreeing with the defendant, affirmed the judgment of the trial court.

The plaintiff submitted two interrogatories to the jury which addressed defendant's special defenses on the statute of limitations. The plaintiff argued that because interrogatories were posed to the jury, the general verdict rule did not apply. Defendant argued that as the interrogatories posed did not determine the grounds for the verdict, the general verdict rule should have been applied. The plaintiff's interrogatories were not framed so as to elicit responses which would enable the court to determine the grounds for the jury's decision. Therefore, the general verdict rule applied.

The Supreme Court has granted certification on the following issue (235 Conn. 916):

Plaintiff brought this action sounding a nuisance for injuries received when a tree branch fell on her car while driving on a city road. The jury found five of the six elements required to prove nuisance in favor of the plaintiff and awarded $50,000. The trial court accepted the answers to interrogatories but declined to accept the plaintiff's verdict. The court, without further instruction, ordered that the jury direct their verdict in favor of the defendant as their finding that the use of the land was not unreasonable necessitated a verdict for the defendant. Plaintiff appealed.

The plaintiff argued that the court should not have directed a verdict in favor of the defendant, but instead should have invalidated the entire proceeding or sent the jury back for further deliberation after a recharge on the law. The Appellate Court agreed. The trial court did not expressly instruct the jury that they had to answer each of the interrogatories in favor of the plaintiff before they could render a verdict in favor of the plaintiff. Judgment reversed and the case remanded for a new trial.

On June 15, 1993, the Supreme Court decided Curry v. Burns, 225 Conn. 782. The case involved a defective highway action against the State under § 13a-144 of the General Statutes. The defendant denied that he breached his statutory duty to maintain the highway and that the plaintiff had given notice as required by the statute. No interrogatories were submitted to the jury which returned a general verdict for the defendant. The Appellate Court held that it would not reach the plaintiff's claims of error directed to the notice issue as it concluded that any error would be harmless under the general verdict rule, as the defendant's verdict obviously meant that the commissioner had not breached his statutory duty to maintain the highway and accordingly there was no need to reach the notice issue. The Supreme Court granted certification on the general verdict issue, as in Hall v. Burns, 213 Conn. 446, 484-485 (1990), it had decided that in an action under 13a-144 a denial of both a highway defect and that the defect was the proximate cause of the plaintiff's injury were not distinct and several defenses for purposes of the general verdict rule. The court reversed the Appellate Court, overruling Finley v. Aetna Life & Casualty Co., 202 Conn. 190 (1987).

The Curry court, 225 Conn at 786, set out the general verdict rule as follows:

The Finley case involved a one count complaint for breach of an employment contract. It raised two claims, that a contract existed and that it had been breached. No interrogatories were submitted to the jury, which returned a general verdict for the defendant. On appeal, the court held that the general verdict rule precluded consideration of the plaintiff's claims regarding the charge, as they were directed to only one of the two separate and distinct issues.

The decision of Judge Borden in Curry v. Burns, concurred in by Justices Callahan, Berdon, and Katz, overruled Finley because it extended the general verdict rule "beyond appropriate bounds." It found the analysis in Finley to be flawed in that it did not correctly analyze prior precedent, and because "the authorities on which Finley relied for its broad and flexible formulation of the rule do not support that formulation." 225 Conn. at 799. Most important it overruled Finley because (225 Conn. at 799):

Judge Borden also explained the effect the general verdict rule has on the trial (225 Conn. at 793-794):

The court recognized that the application of the rule requires a substantial degree of certainty. Otherwise, the trial lawyer will be forced to err on the side of prudence by requesting interrogatories whenever there are "factually distinct issues that have been litigated, even though those issues stem solely from denials of different factual allegations of the complaint." 225 Conn. at 800.

The rule adopted provides for the application of the general verdict rule in five situations as follows: (225 Conn. at 801)

An important part of the courts analysis is the non-application of the general verdict rule of specifications of negligence. Not even Finley had applied the general verdict rule to specifications of negligence. Several different specifications of negligent conduct in support of a single cause of action does not implicate the application of the general verdict rule because the "various grounds of negligence alleged are so often so interlocked as to make it difficult to consider them separately, and formulating interrogatories to obtain separate findings on the various claims would complicate the work of court, jury and counsel." 225 Conn. at 787.

Finally, the court noted, 225 Conn. at 789 n. 2, that the amicus curiae, the CTLA, suggested that "we abandon the general verdict rule altogether." The footnote then states:

The Chief Justice, in her dissent, concluded (225 Conn. at 803-804):

The amicus brief for the Connecticut Trial Lawyers Association was prepared by Neil Sutton of Cohen & Wolf. He had called attention in the brief to a substantial body of authority repudiating the general verdict rule. Federal Courts do not adhere to the rule. Indeed, the federal rule is just the opposite: there is no presumption that the jury found every issue in favor of the prevailing party. There is, on the contrary, a presumption that the jury were misled and an error on one count of a multiple count complaint will result in a new trial.

The rule as articulated in Curry v. Burns is still open to attack.

To repeat: the rules does not apply to specifications of negligence in a cause of action based on negligence. Where several specifications of negligent conduct in support of a single cause of action for negligence are submitted, and an error occurs on one, the fact that the remaining specifications are error-free does not implicate the application of the general verdict rule.

In Holbrook v. Casazza, 204 Conn. 336 (1987) (Shea, J.), the court applied the general verdict rule in a defamation case. The defendants in Holbrook argued that the negligence rule as stated above should not be applied in a defamation action where several separate defamatory statements were set out in a single cause of action. The court held that the allegations were interrelated and interlocked and refused this approach.

However, what the court said it had never done in Curry and Finley did occur in the Appellate Court in Marsh v. Washburn, 11 Conn. App. 447, 458-459 (1987), involving specifications of contributory negligence set out in the defendant's special defense.

Defendant had pleaded both intoxication of the plaintiff and reckless driving in his special defense. The plaintiff on appeal complained that the trial court had misstated the evidence with respect to the alcohol issue. The Appellate Court held that even if it were to assume that the court erred by misstating the evidence in its charge on the impairment because of intoxication claim, there was evidence to sustain a defendant's verdict on the basis of the specification in the special defense that the plaintiff was guilty of reckless driving. The court then stated (11 Conn. App. at 458-459):

The application of the general verdict rule in this context is astounding in light of the nearly contemporaneous statement in Finley that the Supreme Court had never done this.

In Hanlon v. Stettbacher, 13 Conn. App. 571 (1988) (DuPont, C.J.), the court applied the general verdict rule to preclude review of the plaintiff's claimed errors in jury instructions and evidentiary rulings pertaining to the defendant's negligence. The defendant by way of a special defense had alleged that the plaintiff was contributorily negligent. The court found that "[s]ince the jury is presumed, as a consequence of its general verdict, to have found for the defendant on her special defense of contributory negligence, the claimed error in the charge relating to the defendant's negligence need not be considered." 13 Conn. App. at 573. The court applied similar reasoning to claimed errors relevant to evidence admitted on the issue of negligence of the defendant and likewise declined to review such errors.

In Staudinger v. Barrett, 208 Conn. 94, 99 (1988), Justice Shea specifically states that the defendant's denial of negligence and plaintiff's contributory negligence are separate and discrete defenses. The court's language (208 Conn. at 100):

In Booker v. Stern, 19 Conn. App. 322 (1989), the court held that two causes of action in one count come within rule: so long as one cause within the count is error free, there is no reversible error.

See also Giardini v. Supermarkets General Corporation, 24 Conn. App. 9, 10 (1991); Staudinger v. Barrett, 208 Conn. 94, 99 (1988).

In Cuartas v. Greenwich, 14 Conn. App. 370, 374 (1988), the court noted that where the general verdict rule is clearly applicable the appellee need not comply with Practice Book Section 4013(a)(1) which requires that an appellee who wishes to present an alternate ground upon which the judgment may be affirmed file a preliminary statement of issues within 14 days of the appellant's filing of a preliminary statement of issues.

The jury in this personal injury action, in which special defenses had been pleaded, returned a handwritten verdict which read (229 Conn. at 834):

Because of the complexity of the case, the parties had agreed that interrogatories and verdict forms were necessary, and had agreed as to their wording and content. The parties, however, had not finished preparing the interrogatories and verdict forms when the court began its charge to the jury in the late morning of November 27, 1991. The court stated in its charge that it anticipated that there would be interrogatories and verdict forms by the time the deliberations commenced. Deliberations were over, however, later that day before interrogatories or verdict forms were available. No objection was made by the plaintiffs or defendants to the court allowing the jury to deliberate without the interrogatories or verdict forms. The jury returned the above-quoted handwritten verdict.

The Appellate Court refused to reach the plaintiffs' claims that the court's charge was so confusing that it provided an inadequate guide to the jury because of the general verdict rule. The Supreme Court reversed based on the language in the verdict that they unanimously agreed that "all claims against the defendants ... are inconclusive."

The Supreme Court held that the finding of the plaintiffs' claims as inconclusive indicated that the jury had found that the plaintiffs had failed to meet their burden of proof, and that it declined to consider further issues. There was no finding as to the defendants' burden of proof on their special defenses.

Because the jury specified the basis of its verdict -- that the plaintiffs had failed to meet their burden of proof, the general verdict rule did not apply and the question of the court's charge as to the plaintiffs' cause of action should have been reviewed.

13. JUDICIAL NOTICE

State v. Siano, 20 Conn. App. 369, 375 (1989), cert. granted in part, 214 Conn. 801 (1990).

Defendant asked Appellate Court to take judicial notice of transcript of witness' sentencing hearing. Appellate Court "will not take judicial notice of facts that were not available to the trial court at the time of trial." Defendant failed to provide this transcript to the trial court.

McCarthy v. Warden, 213 Conn. 289, 293 (1989), petition for cert. filed, 3/9/90.

The Supreme Court examined the pleadings filed by petitioner in the case before it which he had filed in the federal district court. The court noted that "these pleadings were not formally made part of the record at trial," as the trial court's ruling did not turn on the pleadings filed in the district court. The court stated (213 Conn. at 293):

The court went on to hold that the pleadings in the federal court case established that that court had before it "the identical underlying claim" concerning the matter before the trial court in the instant action. 213 Conn. at 294.

14. MOTION TO SET ASIDE: JURY CASES

The motion to set aside requirement for full review in civil money damage actions established in Pietrorazio v. Santopietro, 185 Conn. 510, 515-516 (1981) is still alive and well. It was adhered to in Finley v. Aetna Life & Casualty Co., 202 Conn. 190 (1987) and again in 1988 in Small v. South Norwalk Savings Bank, 205 Conn. 751 (1988) (Hull, J.); and in 1992 in Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 361-363 (1992).

The motion to set aside is indispensable if a party wishes to raise the sufficiency of the evidence to support the verdict as well as other issues which have already been raised on the trial, such as rulings or errors in the charge. In Pietrorazio, the court first recognized the necessity of the motion to set aside in order to obtain appellate review of sufficiency of evidence claims. In Small, the court held that a motion to set aside is a prerequisite to consideration on appeal of trial rulings, using the rationale of the Pietrorazio dicta that "[e]ven where a claim of error has been sufficiently preserved for appellate review it is seldom that its articulation in the heat of trial approached the clarity and thoroughness of the presentation at a post-trial motion." Pietrorazio, 185 Conn. at 515. See also, Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986).

The Appellate Court demonstrated its willingness to adhere to the mandate of Small by refusing to review claimed errors in evidentiary rulings which were not sufficiently specific in a defendant's motion to set aside the plaintiff's verdict in Voight v. Selman, 14 Conn. App. 198 (1988) (DuPont, C.J.). The defendant was required to draw the trial court's attention to particular errors in evidentiary rulings in order to avoid the plain error standard of review. "To hold otherwise would be to require a trial court to determine for itself what undefined and unspecified judicial error in an evidentiary ruling will prove on appeal to be the needle in the trial haystack." Voight, 14 Conn. App. at 200-201.

The holding of Small v. South Norwalk Savings Bank was similarly enforced in Cuartas v. Greenwich, 14 Conn. App. 370 (1988) (DuPont, C.J.). The court confined its review to plain error because the plaintiffs failed to set forth either in their motion to set aside, their supporting briefs, or at oral argument at hearing on the motion to set aside, their claims of error with "sufficient specificity to enable the trial court to consider the claimed errors." Cuartas, 14 Conn. App. at 374.

Reviewing its earlier holdings on the necessity of a motion to set aside, the court stated that "this rule is essential in order to prevent a judicial game of pin-the-tail-on-the-claim-of-error." Cuartas, 14 Conn. App. at 375.

See also Dunham v. Dunham, 204 Conn. 303, 310-311 (1987); Mozzer v. Bush, 11 Conn. App. 434, 437-438 (1987); Voight v. Selman, supra. In Voight, the defendant did timely file a motion to set aside the verdict, but did not call the trial court's attention to any particular error in an evidentiary ruling. Numerous rulings had been made on the trial. The court held that a sweeping statement in a motion that the verdict should be set aside because of errors in evidentiary rulings does not provide the trial court with any opportunity to rule on a claim of error which later becomes the subject of an appeal. If such a motion is not accompanied by a brief, or oral argument citing particular claimed errors, there will be no plenary review. In such a case the review will be limited to the standard of plain error. 14 Conn. App. at 200.

The Santopietro Rule was recently criticized in Saporoso v. Aetna Life & Casualty Co., supra, 221 Conn. at 372 (Berdon, J. and Borden, J. concurring):

Justice Shea, writing for the majority, justified the rule (221 Conn. at 363):

Goral v. Kenney, 26 Conn. App. 231 (1991).

Defendant in dental malpractice action where plaintiff awarded $326,500 limited to plain error review on appeal.

See also, Falby v. Zarembski, 221 Conn. 14, 22 (1992)

Wierzbicki W.W. Grainger, Inc., 20 Conn. App. 332, 335-336 (1989).

A motion to set aside a verdict must be filed within 5 days of the acceptance of the verdict by the court. Practice Book Section 320. Plaintiff's motion was untimely, therefore, appellate review is limited to a determination of whether acceptance of the verdict constituted plain error.

Losacco v. Young, 210 Conn. 503 (1989).

This case reached the Supreme Court on certification. The court found that the Appellate Court erred in raising the timeliness of plaintiff's motion for a new trial under Section 320 sua sponte. It determined that time limitations imposed by the Practice Book rather than by constitutional or statutory mandate are procedural and cannot be jurisdictional. Because the defendants did not object to the timeliness of the filing of the motion, the nonjurisdictional defect in the plaintiff's motion was waived.

Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 108 n.3 (1988).

Verdict was accepted April 10, 1987. Posi-Seal filed its motion to set aside on April 16, 1987, six days after the verdict had been accepted. Plaintiff also filed his motion to set aside on April 16, 1987. Neither party objected to the late filing (Section 320 requires the motion to be filed five days after the verdict is accepted). The court, citing Small v. South Norwalk Savings Bank, 205 Conn. 751, 756-59, 535 A.2d 1292 11988) pointed out that where there is prompt objection to the defendant's out of time motion, the plain error review rule will be implicated. Since the plaintiff in the instant case did not object to the defendant's untimely motion to set aside, the court applied the normal standard of review applicable in a civil appeal. The moral is, to take advantage of the outrageous rule expanded in Small v. South Norwalk Savings Bank, supra, prompt objection must be made to any late filing, or defect is waived.

Biagioni v. Aetna Life & Casualty, 16 Conn. App. 690 (1988).

The court refused to consider the plaintiff's claims that the trial court erred in accepting an unreasonably low jury verdict without requiring the jury to reconsider damages, and in refusing to order an additur. Although the plaintiff moved to set aside the verdict as required, the motion to set aside the verdict did not include either of these claims and therefore the plaintiff did not afford the trial court an opportunity to correct any errors that may have occurred at trial before beginning the appellate process.

15. MOTION TO SET ASIDE: COURT CASES

There have been a series of Appellate Court decisions that seem to indicate that a motion to open or set aside the judgment may be required in order to obtain full appellate review in a case tried to the court. In Keans v. Bottiarelli, 35 Conn. App. 239 (1994) Judge Schaller indicated, 35 Conn. App. at 245 n. 1 that plain error is the appropriate standard of review where a motion to set aside verdict has not been filed, and applied this rule to a court case. The plaintiff claimed that the trial court improperly refused to grant the plaintiff’s motion to accept a bill of costs, specifically with reference to an item relating to the video tape testimony of the plaintiff’s expert. The court stated (35 Conn. App. at 245):

It analyzed the issue under plain error and found no error. The mystery is that the case was not tried to a jury, but to the court. It was an action for dental malpractice tried to and decided by Judge Jackaway in the superior court at New Britain.

In Flint v. National Railroad Passenger Corp., 37 Conn. App. 162 (1995) Judge Schaller noted (37 Conn. App. at 163 n. 1) that the defendant claimed the plaintiff failed to file a post-judgment motion pursuant to §320 of the Practice Book, and thus the court should review the plaintiff’s claim only under the plain error doctrine. The court concluded that after plenary review there was no error so that the defendant could not argue that a decision under the rigorous plain error standard would have been different from that reached under the ordinary standard of review. The note further stated: "We, therefore, need not reach the §320 issue."

Section 320 does not apply to cases tried to a judge. It applies to jury cases only, and the analysis of the Appellate Court in the two cited cases is flawed.

In Dunham v. Dunham, 217 Conn. 24 (1991) the court first stated that the appellant had not raised the issues concerning contempt orders at the time they were issued. The court then related that the appellant had not otherwise pursued post-trial motions of attacking the contempt orders, and referenced §320 of the Practice Book. This reference is most unfortunate. The court in Dunham found that the trial court "was never afforded the opportunity to correct any possible errors in its rulings . . ." Id. at 29. The court did not hold that a §320 motion must be filed in all cases, even if the issues were raised at trial, in order to obtain full appellate review.

The Dunham decision should not be interpreted as requiring the losing party in a nonjury case to file a §320 motion in order to obtain full appellate review. Such an interpretation unnecessarily extends the rule established in Pietrorazio v. Santopietro, 185 Conn. 510 (1991), which recently was criticized by Justices Berdon and Borden in Saporoso v. Aetna Life & Casualty Co., supra, 221 Conn. at 372-373:

16. ORAL ARGUMENT

Beginning with the Appellate Court’s Seventh Term (April/May 1996) the coverage page of its assignment list states:

Section 4108 reads in part:

It’s a stretch to interpret this rule as authorizing summary reduction in the time for oral argument. As a practical matter there isn’t much counsel can do about it, and in any event most cases can be argued in less than 20 minutes.

Inquiry was made to the Chief Clerk as to how the court got 20 minutes in "any case" out of the language in the rule. The clerk’s office advised that the inquiry had been communicated to the court, but no response has been received.

It may be that the 20-minute time limit is appropriate, given the extraordinary volume of cases the Appellate Court hears. Nevertheless, we think publishing an announcement on the face of the assignment list is a lousy way to make rules.

State v. McNellis, 15 Conn. App. 416, 441 (1988).

Defendant claimed error in court's denial of his motion for mistrial based on testimony as to the existence of a red stain on slacks seized at the time of arrest because the State had failed to disclose that finding pursuant to discovery orders. After a lengthy discussion as to the "nonentitlement" of a criminal defendant to discovery, the court alluded to oral argument as follows (15 Conn. App. at 441):

The court went on to hold that under these circumstances, that is the admission of defense counsel, the defendant could "hardly claim surprise."

Temple v. Meyer, 208 Conn. 404, 409 (1988).

At oral argument defendant's attorney stated that "Scott Barton had adopted Timothy. The plaintiff did not challenge the statement." 208 Conn. at 409, n.4. The footnote appeared at the end of a sentence which stated that Barton and Timothy have merged into a close family unit and are looking towards Barton's adoption of the child. It is unclear whether the future adoption was in evidence, and the statement at oral argument concerning the fact of adoption was the only item outside the record.

The court may be overreaching in relying on the failure of a party to dispute another party's representation at oral argument. Too much is happening at oral argument with respect to time constraints and other issues. It may well have been that the plaintiff's attorney in the cited case felt justified in relying on the absence of evidence in the record, rather than having the court credit a statement clearly outside of the record, and did not see the need to comment. Inferring from a party's failure to dispute facts at oral argument appears to be a departure from established appellate practice.

Bombero v. Marchionne, 11 Conn. App. 485, 491-492 (1987).

This holding is reported in §10 of this Review, no. 1018.

17. REMAND

The Appellate Court held that the trial court improperly awarded attorney’s fees against two parties, only one of whom appealed. The plaintiff claimed that since only one of the parties appealed, the award of attorney’s fees was conclusive as to the other, however the Appellate Court held that a party who fails to appeal may benefit from the prosecution of an appeal of another party in the same case, citing Gino’s Pizza of East Hartford Inc. v. Kaplan, 193 Conn. 135, 141-142 (1984).

Supreme Court reverses trial court's order granting acquittal entered after defendant began serving sentence. Trial court had initially denied defendant's motion and committed defendant to custody of commissioner of corrections to begin serving sentence. Upon reconsideration, trial court granted motion for judgment of acquittal on grounds of insufficient evidence. Supreme Court ruled that trial court was without jurisdiction to grant acquittal after sentence was executed. Court noted that defendant had alternative relief available, id. at 434-435. This case may be useful for purposes of analyzing questions relating to trial court's post-judgment jurisdiction in civil matters as well.

The Appellate Court, in exercising its supervisory powers under §4183(10) ordered the trial court to remand the case to the same attorney trial referee who decided it in the first instance for the preparation of a report consistent with the requirements of §434 of the Practice Book. The court held that §4183(10) by its plain terms applies only to matters necessary to supervise or control "the proceedings on appeal" and these did not include proceedings on remand after the appeal had been concluded.

The court noted that under §51-197a the Appellate Court has the power to fashion a remand that is reasonably necessary and appropriate to facilitate its judgment. The statute authorizes the Appellate Court to issue "all writs necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law." Although the Appellate Court has jurisdiction to fashion a remand that is reasonably necessary or appropriate to facilitate its judgment, as in O'Neill v. O'Neill, 13 Conn. App. 300, 314-315, cert. denied 207 Conn. 806 (1988) where an order of custody of a child was directed to be with the defendant until the trial court had an opportunity to address the issue at a new hearing, the present case is distinguishable because it did not address the period between the appeal and the new trial, but rather attempted to decide a question that should have been left to the trial court on remand. 229 Conn. at 822.

18. RESERVATION

The question reserved was:

As posed, the question involves the responsibility of a common carrier owned by the state of Connecticut to provide UM benefits. The stipulation of facts, however, did not provide an adequate basis for the court to conclude that an answer to the question would enter into the decision of the case because the stipulation submitted showed that the state did not own the common carrier, but merely contracted with the common carrier, H.N.S. Management Co., Inc., a private corporation doing business as Connecticut Transit. While the state owns the buses, it does not own the private carrier. Accordingly, the stipulation did not provide a factual predicate for the question reserved, and as a result the court was not sure whether the answer to the question presented would enter into the decision of the case.

Appeal from decisions denying the plaintiff's petitions for reassessment of additional sales and use taxes. The parties stipulated to certain facts, and the trial court reserved for appellate advice the following questions:

The court noted that a trial court cannot compel the Appellate Court to render advisory opinions by the simple expedient of reserving questions to the Appellate Court that do not meet the criteria set forth in §52-235 and Practice Book §4147 concerning reservations.

The Appellate Court held that as presented the case required it to determine a factual issue. In order to answer the question, the agency relationship between the contractor and the government has to be determined, and the facts presented were insufficient to do so. Moreover, the court held that the answer to the reserved questions are not reasonably certain to enter into the decision of the case, and the issue presented does not "involve any monumental question of law." It accordingly refused to answer the questions.

19. SANCTIONS

Defendant’s counsel failed to appear at the preargument conference, and failed to return any of the judge’s telephone calls.

The opposing party moved to dismiss and for sanctions. The court denied the motion to dismiss, but imposed sanctions of $750 based on counsel’s affidavit in support of the request for counsel fees.

Although §4103 provides for sanctions under §4184 for failure to attend a preargument conference, the court quoted extensively from In Re Presnick, 19 Conn. App. 340, 347 (1989), noting that there are three possible sources of the authority of courts to sanction counsel and pro se parties, including its inherent power, statutory power, and the power conferred by published rules of the court.

20. SCOPE OF REVIEW

Justice Shea, in dissenting in the above case, noted that the Supreme Court is not limited in its disposition of the case to claims raised by the parties and has frequently acted of its own motion upon grounds of which the parties were not previously apprised, citing Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983). He notes that the practice has commonly been followed with respect to jurisdictional issues. Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).

Stitzer v. Rinaldi's Restaurant, 15 Conn. App. 356, 360 (1985), reversed on other grounds, 211 Conn. 116 (1989).

Following a practice adopted by the Supreme Court in the recent past, the Appellate Court made extensive use of Gray & Gordy's "Attorney's Textbook of Medicine (3rd Ed.)" in its decision on a workers' compensation medical issue. It would appear that specialized texts and medical texts can be used to supplement the record at least as to fundamental definitional items, and maybe more.

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

Practice Book Section 4138 provides in part that the issues "which the appellant may present (to the Supreme Court on certification) are limited to those raised in the petition for certification . . . except where the issues are further limited by the order granting certification." The Supreme Court may, however, suspend the requirements of 4138 when the "dictates of justice necessitate a more expansive review." Paranteau v. DeVita, 208 Conn. 515, 516 (1988), citing Section 4187 of the Practice Book; Nardini v. Manson, 207 Conn. 118, 119-120, 540 A.2d 69 (1988); State v. Hodge, 201 Conn. 379, 382-838, 517 A.2d 621 (1986); State v. Torrence, 196 Conn. 430, 433-434, 493 A.2d 865 (1985); Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983).

State v. Mercer, 208 Conn. 52, 56 (1988).

The CCLU, as amicus, raised the defendant's constitutional rights to privacy and equal protection. The court recognized the significance of these claims, but declined review as the defendant himself had not distinctly raised them.

21. STANDARDS OF REVIEW

2101. Standard of review in defamation cases.

The court cited Woodcock v. Journal Publishing Co., 230 Conn. 525, 535 (1994), cert. denied 115 S.Ct. 1098 (1995). The court noted it had a constitutional responsibility to make an independent review of the record to make sure that there was no forbidden intrusion on the right of free speech. It stated that there is no doubt that a trial court finding of actual malice in a defamation case requires an appellate court to conduct an independent review of the record and to draw its own conclusion as to whether actual malice has been proved by clear and convincing evidence.

Justice Berdon set out the standard of review for assessing errors in the charge:

See also State v. Leroy, 232 Conn. 1, 8 (1995).

2103. Standard of review for summary judgment.

Judge DuPont sets out the standard: Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This is provided in §384 of the Practice Book.

She stated (39 Conn. App. at 762):

The case also stands for the proposition that a mere denial in an answer does not create an issue of material fact. 39 Conn. App. at 771.

See also, Pool v. Bell, 209 Conn. 536, 541 (1989); and DiPalma v. Wiesen, 163 Conn. 293, 298-299 (1972).

The standard of review is stated as follows:

The court set out the standard of review for the trial court commenting on the evidence (36 Conn. App. at 287):

The plaintiff had brought an action for breach of an employment contract. The defense was that he voluntarily resigned. The plaintiff claimed that he was incapable of making an intelligent, knowing and voluntary resignation. The trial court commented to the jury that no direct medical evidence proving that he was incapable of voluntarily resigning had been offered. Rather, the plaintiff offered a medical report and other evidence from which he claimed an inference might be drawn that he was incapable of voluntarily resigning. The court highlighted the distinction, but did not remove the issue of whether the plaintiff voluntarily resigned from the jury. The court held that there was no abuse of discretion.

The court stated that it must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial, giving particular weight to the concurrence of the judgments of the judge and jury, who saw the witnesses and heard the testimony. The verdict will be set aside and judgment directed only if the court finds that the jury could not reasonably and legally have reached their conclusion.

The court stated that it reviews the remittitur issue in the context of the state constitutional right to trial by jury, which includes the right to have the jury, rather than the court, pass upon the factual issue of damages, when there is room for reasonable difference of opinion among fair-minded persons as to the amount which should be awarded. The trial court may order a remittitur only if it concludes as a matter of law that the verdict is excessive.

Rozbicki v. Huybrechts, 218 Conn. 386 (1991).

Plaintiff had a constitutional right by virtue of article first section 19 to be present during voir dire. He asserted that right through counsel. He did not waive that right by his conduct. Trial court violated his right by ordering jury selection to go forward in his absence.

The court held that the party advantaged by the trial court's improper ruling must bear the burden of proving that the ruling was not prejudicial. 218 Conn. at 396.

Defendant did not meet burden, therefore, plaintiff entitled to new trial. Supreme Court, reversing prior precedent, required the defendant to show that the plaintiff was not prejudiced by trial court's ruling, rather than requiring plaintiff to show that he was prejudiced.

State v. Paolella, 211 Conn. 672, 680-681 (1989).

The purpose of a sequestration order is to prevent a witness from fashioning his testimony to correspond to the statements of others in the courtroom. If the court fails to observe its own order, the burden is on the party requesting sequestration to show prejudice.

See, State v. Soltes, 20 Conn. App. 342 (1989), cert. granted in part, 214 Conn. 804, cert. dismissed, 214 Conn. 805 (1990). General Statutes Section 54-85a mandates that, in a criminal case, a sequestration motion by either the defendant or the state shall be granted as to anyone the mover wishes to have sequestered or to any or all witnesses. There is no exception for expert witnesses. 20 Conn. App. at 346.

State v. Kelly, 23 Conn. App. 160, 167, cert. denied, 216 Conn. 831 (1990), cert. denied, 111 S.Ct. 1635, 59 U.S.L.W. 3724 (1991).

Evidence obtained by visual inspection, such as when the trier of fact visits property, is not subject to appellate review. (citations omitted) Kelman v. McDonald, 24 Conn. App. 398, 402 (1991).

Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708 (1991).

A finding of fact is clearly erroneous when there is no evidence in the record to support it; or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

A factual finding must be reversed as clearly erroneous if it was based on an incorrect rule of law. Dunnigan v. First Bank, 217 Conn. 205, 215 (1991).

Dunham v. Dunham, 217 Conn. 24, 29 (1991).

In any appeal from a civil contempt order, review is limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the acts for which the penalty was imposed could constitute a contempt.

The trial court's need for immediate and effective contempt power must be balanced against the contemnor's fundamental rights. A civil contempt may be improper or erroneous because: the injunction on which it was based was vague and indefinite; the findings on which it was based were ambiguous and irreconcilable; the contemnor's constitutional rights were not properly safeguarded; the penalties imposed were criminal rather than civil in nature; and the contemnor, through no fault of his own, was unable to obey the court's order. (Citations omitted). See also, Tatro v. Tatro, 24 Conn. App. 180, 188 (1991).

State v. Boone, 15 Conn. App. 34, 38 (1988), cert. denied, 209 Conn. 811 (1988).

Although a criminal case, the principle of law set out concerning the standard of review on the complaint of error in failing to charge as requested is the same in a civil case. Where the appellant is claiming that the trial court failed to charge as requested, the Appellate Court must adopt the version of facts most favorable to the appellant in assessing whether charge should have been given.

The trial court erroneously excluded a deposition of a party who was not available. Noting that the appellant has the burden of demonstrating that the error was probably harmful, and that this standard requires that the erroneous ruling would likely effect the result, the court reversed. Defendants, who had the deposition excluded, had the burden of proof on fraudulent misrepresentation by clear and convincing evidence, and the court held that corroborating testimony from one of only three potential sources as to the facts at issue was sufficient for a showing of harm.

In State v. Golding, 213 Conn. 233 (1989), the Supreme Court reviewed the State v. Evans, 165 Conn. 61 (1973), standard and articulated the following guidelines (213 Conn. at 239-240):

Evans bypass, as construed by State v. Golding, 213 Conn. 233, 239 (1989) now "Evans-Golding." A defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met:

The reviewing court is free to dispose of the claim by focusing on whichever condition is most relevant.

See, State v. Watlington, 216 Conn. 188, 192-3 (1990). Prosecutorial misconduct did not rise to the level of egregious misconduct violative of the defendant's due process rights.

State v. Chicano, 216 Conn. 699, 705 (1990)(If double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable under State v. Evans.)

(a) CIVIL: "The test for determining the validity of the jury's verdict is whether the evidence, fairly and impartially considered, would be likely to induce in the minds of six persons of ordinary intelligence, attentively considering it and using common-sense logic, a reasonable belief that it is more probable than not that the facts in issue are true." Rapuano v. Oder, 181 Conn. 515, 517 (1980); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 529 (1989). The jury's findings of fact will not be disturbed if it is reasonably supported by the evidence or the reasonable inferences drawn from the facts proven.